Date of decision 13th May 2021
What happened
In 2018, the LGSCO had previously considered a complaint [Essex County Council (17 009 245)] on behalf of Ms C and Ms D in relation to whether the previous Deputy’s fees should be treated as Disability Related Expenditure (DRE) for the purposes of financial assessment and charging. Following that complaint, the Council agreed it would accept the Deputy fees as DRE at the level of a local authority Deputy’s fees.
In June 2018 the Court appointed a new Deputy, the company for which Mr B, the complainant, worked professionally.
Mr B wrote to the Council in July and November 2018 and in January and May 2019. He claimed that, at the time of the previous complaint, Ms C and Ms D were struggling financially and the previous Deputy must have agreed to a reduced amount as everyone had wanted a resolution to the complaint. Mr B stated that the agreement made the previous year was no longer appropriate and requested the Council to treat the full cost of his company’s services to Ms C and Ms D as DRE.
In its response to Mr B, the Council asserted that, since the Deputy service could be provided at a lower cost by a Council Deputy, it was not reasonable for the Council to treat the higher amount (i.e. the difference) as DRE.
The LGSCO issued a draft decision in November 2020, recommending that the Council complete new financial assessments to consider whether the Deputy’s fees being claimed for DRE were reasonable. The Council reviewed the matter and stated that it had already taken into account the issue of DRE regarding the Deputy expenditure and that a further review of its interpretation of law and guidance would not lead to a different outcome.
What was found
The LGSCO recognised that the Court had appointed the Deputy service for Ms C and Ms D. It considered that the Council had discretion whether to treat some costs as DRE. The Council had agreed to treat the Deputy costs as DRE, so the issue here was the amount of disregard granted by the Council.
The LGSCO considered the Council’s reasoning that a lower cost service could be sourced as an alternative, but did not accept the Council’s perspective because the service was appointed by the Court and not by individuals.
The LGSCO identified that a Council Deputy could only be appointed if an application to the Court was made. No application was made, so there was no justification for this hypothetical situation being used to determine the level of DRE.
The LGSCO highlighted the public policy reasons for appointing a Deputy that is known to the person. The service appointed in this complaint had been working for Ms C and Ms D for several years and the LGSCO recognised that this meant it was more likely to operate in their best interests.
Given that a Council Deputy will often only be appointed when there is no alternative, this had not happened for Ms C and Ms D.
The Council told the LGSCO in its reply that it had not suggested replacing the Deputy service with a Council Deputy; rather it had argued that it was a comparable service. The LGSCO emphasised that the test in the guidance is whether a reasonable alternative is available for a lesser cost. The LGSCO therefore found that the Council was implying that the Court-appointed Deputy could be replaced with a Council service, when in fact that was not anyone’s plan.
The LGSCO also found that the Council had failed to consider whether the service provided by the Deputy merited the charges, i.e. were they reasonable? The LGSCO also highlighted that the guidance provides that the Council may decide not to allow DRE where a cheaper alternative was available. Here, the Council appeared to have decided that, as a cheaper option merely exists, it automatically followed that it need not allow the full fees, rather than considering the specific circumstances. It needed a rationale.
The LGSCO found the Council at fault for deciding that because a cheaper option simply existed, it would not allow the full fees to be accepted as DRE, rather than taking an individualised approach and looking at the situation on its merits.
The LGSCO decided that Ms C and Ms D had suffered an injustice as they could not be certain that they were receiving the full disregard to which they may have been entitled.
It recommended that the Council:
- Reconsider whether the fees were reasonable in the context of the Deputy service provided. In doing so, the Council would need to take into account the amount available to meet the care needs via the care plan, if it would not allow the full cost as DRE.
- Would need to factor the cost of appointing a Council Deputy into the financial assessment if it decided that Ms C and Ms D should have a Council Deputy.
- Consider the policy reasons why a Council may not be an appropriate alternative to the Court-appointed service.
The LGSCO required the Council to consider these factors with an open mind and without predetermining the outcome, and recommended it show a readiness to change its views if appropriate.
The Council should also write and fully explain its decision to the LGSCO, including how it considered the factors set out by the LGSCO for its consideration. If it remained of the same view and came to the same outcomes, the Council would need to explain this to the LGSCO.
The Council was requested to consider the LGSCO report and confirm within three months the action it would take. The LGSCO also requested the Council consider the report at full Council, cabinet or other appropriately delegated committees pursuant to s.31(2) Local Government Act 1974, as amended.
Points to note for councils, professionals, people who use services and their carers, advocacy providers, members of the public
It is noteworthy how the LGSCO has really taken the Council to task on this matter, particularly in the wording used following the recommendations. The LGSCO has required the Council to “consider these factors with an open mind and without predetermining the outcome, and recommended it show a readiness to change its views if appropriate.” Also, to “fully explain its decision to the LGSCO, including how it considered the factors set out by the LGSCO for its consideration” and finally, to consider the LGSCO report at full Council, cabinet or other appropriately delegated committees.
This Council has a discretion regarding this DRE disregard request and should have been aware of that. It is simply not enough for councils to compare the service against the cost of another, where the alternative is not actually an option being considered.
The Care and Support Statutory Guidance says at Annex C (paragraph 40):
(xiii) ‘in other cases, it may be reasonable for a council not to allow for items where a reasonable alternative is available at lesser cost. For example, a council might adopt a policy not to allow for the private purchase cost of continence pads, where these are available from the NHS’.
The Council relied on this paragraph without considering the fact that an alternative was not available as Ms C and Ms D had not selected a more expensive service – the Deputy having been appointed by the Court. The Council did not take on the role of Deputy by progressing an application to Court, therefore in this instance it is clear that a reasonable alternative was not available at lesser cost.
Exactly the same would be said of Appointeeship which is why we think that councils are fighting this sort of decision from the LGSCO, behind the scenes. They have saved themselves the cost of appointeeship by closing down Client Affairs teams, without thinking of how this would be a cost shunt to the individuals previously served. However, DRE, and the impossibility of any council taking a stance that this cost is not related to and wholly arising from the person’s mental impairment, offers a means to project that cost right back to the State, and we can only applaud the LGSCO’s stance in this matter.
The LGSCO pointed out the wider public policy reasons which relate to appointment of Council deputies (or appointees in our view) needed to be explicitly considered.
We think the LGSCO could have been explicit in highlighting the conflict of interest inherent in a council’s acting on someone’s behalf regarding a financial decision that will affect its own income from charging (and care planning, ultimately)?
We at CASCAIDr wonder how many Court appointed council Deputies or DWP appointed council Appointees ever challenge decisions made by their own colleagues in financial assessment teams which may be sat next to those taking on this fiduciary responsibility.
In our view, the Court appointment of the Deputy in this complaint was the best interests option for these individuals, especially given the Council’s poor response to DRE relief evidenced in this complaint.
The full Local Government Ombudsman report of Essex County Council’s actions can be found here: https://www.lgo.org.uk/information-centre/news/2021/jun/essex-county-council-to-reconsider-assessment-of-disability-related-expenses