Decision Date: 06 Feb 2023
What happened
Miss Y, who has a significant disability, had received adult social services since 2016. An initial financial assessment came out with a nil contribution but a financial assessment of April 2020 determined a payable amount. This was subsequently increased as a result of the ‘annual uplift’ in April 2021, then reduced in April 2022 following a new financial assessment.
In April 2022, Mrs X complained to the Council stating they were discriminating against Miss Y as her disability prevented her from working, whereas people who were able to work kept more of their money when being assessed for non-residential charging. Mrs X cited the Norfolk judgment on that point.
In September 2022, the Council told Miss Y that her financial contribution would be significantly increased and backdated to the start of June 2022. Mrs X challenged the new amount and said the charge was unaffordable. The Council said the charge was only for three days of respite per month which would be evidenced on a four-weekly statement.
In October 2022 the Council responded to Mrs X’s complaint. It explained its charging policy, which it said was in line with Care Act regulations and guidance and that it had been reviewed in light of the Norfolk judgment.
Dissatisfied, Mrs X, who wanted the Council to review its charging policy, referred the matter to the LGSCO. The LGSCO enquired with the Council, which said it had followed all legislation and guidance, had reviewed its charging policy after the Norfolk judgment and increased its mandatory allowance for people in receipt of additional benefits due to the severity of their disability.
What was found
The LGSCO was satisfied that the Council had considered the Norfolk judgment when reviewing its charging policy; also that the Council had applied a higher mandatory allowance for Miss Y when it completed her financial assessment and disregarded the enhanced benefit payments, instead using the standard rate for its calculations [Note that ‘mandatory allowance’ is not the terminology used in the Guidance, we think they are referring to the Minimum Income Guarantee].
As such, the LGSCO did not find fault by the Council and noted that it is not the role of the Ombudsman to decide if a policy is legal, as only the Courts can make a decision on the legality of a policy.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
We are unsure as to why the charge was backdated to the start of June 2022. It is lawful for councils to backdate a charge if a person had the means to contribute at that time, perhaps due to an increase in their income which then later came to light. However the report is silent as to what the justification for this was, given that a new financial assessment had been carried out in April 2022.
The Norfolk judgment of December 2020 was a significant case. Like many other councils, Norfolk had updated its charging policy to get more income by reducing the Minimum Income Guarantee it had been being generous about, and by ceasing with a taper its earlier policy of disregarding the higher rate aspect of everyone’s disability benefits. However, this meant that people with high support needs were found to have been discriminated against.
Since that case, Counsel advised that: “…policies which:
(a) reduce the MIG to the statutory minimum;
(b) choose not to disregard certain disability benefits;
(c) have poorly functioning DRE schemes; and
(d) do not consider alternative approaches,
are likely to be discriminating against severely disabled people.”
That was because, whilst they may well get more benefits to live on, they are less likely to be working and thus not able to benefit from the disregard of earnings from the means test for charges. And they are likely to be paying a disproportionately larger percentage of their overall income by way of charges compared to those with lower degrees of disability, if the council is taking a standard approach to the Minimum Income Guarantee because that is determined by age group, despite councils having plenty of discretion to do otherwise. So they end up having a higher proportion of their income taken by the Council than disabled people receiving lower benefits and those who are able to do paid work.
CASCAIDr noted the significance of the Norfolk case and wrote to all Councils in England and got the above advice from Counsel to say that they must consider the ruling and examine whether their policies could be discriminatory to ensure they are fulfilling their Public Sector Equality Duty and that they are not breaching the Human Rights Act.
In this situation, the Council had considered the judgment and had introduced a higher mandatory allowance and disregarded the enhanced benefit payments, thus reducing the potential for discrimination. So the LGSCO was understandably satisfied.
Cumbria has now become Cumberland Council. It still cites Cumbria’s charging policy as its own, as one would expect.
One cannot see any reference in the Cumbria policy online as to a disregard of any enhanced benefit (higher rate) (eg PIP or DLA) OR the date of the revision regarding the MIG, referred to in this report. The original policy seems to have been in place in 2015 and then there was consultation in 2018 as to changes, but that was before Norfolk. The policy online was in effect in May 2020, also before Norfolk so we cannot help but wonder what evidence there was to satisfy the investigator of the changes referred to?
Additionally, CASCAIDr continues to be concerned about number of councils where Norfolk has not been properly considered or where it has, no change has been made. If you are concerned about this, you can request a Basic Charges Check from us for £35 CASCAIDr’s Basic Charges Check – Centre for Adults’ Social Care – Advice, Information and Dispute Resolution.
The full Local Government Ombudsman report on the actions of Cumbria County Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/22-009-174