Decision Date: 02 Nov 2021
What happened
Mr X is disabled and required full-time care. He complained to the Council in April 2019, following a change in its charging regime [Northumberland’s website shows it adopted a new charging policy in February 2019].
Mr X was concerned that the changes would mean that he would be unable to afford an upcoming holiday as he needed to have a carer accompany him, and would need to pay for that person. Previously, Mr X’s father, Mr P, had accompanied him on holidays but to further his independence he wanted to take a carer with him, going forwards.
The Council requested a DRE assessment, which was completed, and in August 2019 the Council emailed Mr X with the outcome. A number of expenses that the Council considered DRE were allowed; however, some were not. These included the travel and accommodation costs for a carer to accompany Mr X on holiday. The assessor said these expenses were ‘’not a requirement, but a choice that you make’’.
Mr X complained and the Council agreed that the email’s wording was ‘unfortunate’ and oversimplified the issues but reiterated that it felt that certain items of expenditure were not necessitated by Mr X’s disability.
The Council arranged a meeting with Mr X and his father in October 2019 to discuss the DRE assessment where it was noted that the Council were “led by the outcomes listed in the Care Act in order to meet [Mr X’s] needs…holidays are not covered by the legislation.”
In November 2019, the Council emailed Mr X and told him again that “supporting people to take holidays does not come under the outcomes set under the Care Act.”
In further correspondence in December 2019 the Council told Mr X that it had considered Mr X’s concerns under the United Nations Convention on the Rights of Persons with Disabilities and maintained that his requests were not covered by the Care Act nor DRE guidance. Mr X asked the Council to reconsider and explain how its decision took into account its duty to support and promote wellbeing [Section 1, Care Act 2014].
The Council responded in February 2020 and said its position had not changed and that it relied on its policy in making this judgement. It said that where the policy is silent on a particular issue “the minimum requirements set out in the national legislation and guidance will be taken to apply” and that local authorities only had to “allow the person to keep enough benefit to pay for necessary disability-related expenditure to meet any needs which are not being met by the local authority.”
The Council said it would not be fair to diverge from its policy, which was adopted after consideration of the impact of charges on disabled people and its other priorities, considering the limited funding available.
In April 2020, the Council reiterated its position from the descriptions in the Care and Support Statutory Guidance which it said gave the clear message that the necessary costs are those day-to-day necessities and services which the local authority would have funded if the person was not arranging these privately.
In correspondence with the LGSCO in December 2020, the Council accepted the point made in the Guidance “that there may be further kinds of necessary day-to-day expenditure arising as a result of disability which would not be likely to be included in a care and support plan” and that it has considered this to mean items such as purchasing bath towels [whilst, depending on the reason, this could be an item of DRE, it also falls into the category of ‘normal’ purchases and in the majority of cases would not be considered DRE so we find it strange that the Council considered this as DRE but not the cost of the carer’s accommodation and travel to support Mr X].
It went on to say that the eligible outcomes listed in the Regulations do not include support to be able to take holidays and that whilst it sometimes provided support to people in relation to holidays this was “ordinarily because an assessment identified an eligible need for respite care” and that it had not assessed Mr X as having an eligible need under the Care Act which “required him to spend money on the costs of taking a care worker on holiday with him” and therefore did not consider these costs to be DRE.
The Council said it did not consider holiday costs intended to be included as DRE and that a fair and effective way to achieve financial support for holidays would be through the Care Act eligibility criteria and not DRE rules.
What was found
The LGSCO accepted that councils have to make policy decisions about how to meet service users’ needs within limited budgets and that this is a balancing exercise that can often be difficult. However, a rigid approach to decision-making and failure to consider the merits of each individual case as it is presented is fettering its discretion and is fault. The LGSCO found this to be the case in the Council’s response to Mr X.
The LGSCO found that the Council’s blanket refusal to accept holidays as a necessary DRE, because they were not identified as an eligible need in his care and support plan, to be overly rigid and said that decision-making around DRE should be flexible, and councils should be open to considering non-eligible needs as DRE.
Whilst the Council said it did not limit its discretion, the evidence led the LGSCO to believe that it did, considering itself bound by the eligible needs identified in Mr X’s care and support plan, and not allowing exceptions or even considering individual circumstances as part of the assessment.
The LGSCO upheld Mr X’s complaint. Accepting that the Care and Support Statutory Guidance on DRE (Annex C, paras 39–41) could be clearer, it found: “The financial assessments are not an assessment of needs; when considering DRE, the assessment is whether the expenditure covers ‘reasonable additional costs directly related’ to the individual’s disability. Naturally, the care and support plan will be a good place to look to identify what reasonable costs a person might incur because of their disability, but it is not a complete answer. It is a starting point, not an endpoint. A distinct decision-making process is required.”
The Council informed the LGSCO that it accepted that holiday costs could, in some circumstances, be required to achieve one or more of the outcomes in the eligibility criteria of the Care Act, but that it had not regarded them as so doing in this case. [That approach reflects the position upheld more recently in the Suffolk case.]
The LGSCO recommended that the Council should:
- apologise to Mr X for the fault identified;
- pay Mr X £200 to acknowledge the time and trouble caused by the need to pursue the matter with the Council; and
- review Mr X’s request for holiday costs for his carer to be considered DRE and included a detailed explanation of the reasoning behind any decision made.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
In the calculation of an adult’s income for the purpose of financial assessment, when a council takes into account any disability benefits the adult receives, it must also disregard any DRE incurred by the adult (Care and Support (Charging and Assessment of Resources) Regulations 2014 SI No 2672 Sch 1 paras 4(1) and 15(1)).
Mr X complained that the Council failed to consider holiday travel and accommodation costs for a carer as DRE, as it had “not assessed that [Mr X] had an eligible need under the Care Act regulations which required him to spend money on the costs of taking a care worker on holiday with him, we would not have considered those costs to be DRE”.
The Guidance (para.40) sets out what should be considered as DRE, including
- the costs of any privately arranged care services required, including respite care;
- day or night care which is not being arranged by the local authority;
- personal assistance costs, including any household or other necessary costs arising for the person; and
- other transport costs necessitated by illness or disability.
and goes on to say that what is disability-related expenditure should not be limited to what is necessary for care and support.
The LGSCO chastised the Council for being too rigid in only following the Guidance for what is to be considered DRE. However, we think that Mr X’s request fell squarely within what the Guidance is envisaging as down to the decision-making by the service user as to how to spend their own money. Whilst it is fair to say that nobody NEEDS to go on a holiday, it cannot be the law (through the exercise of DRE discretion) that disabled people who need a carer to look after them, CANNOT go on holiday at all!
The investigator said this: “The Council was, therefore, limiting or restricting the exercise of its own powers by conflating the assessment of DRE with identifying eligible needs and care and support necessary to meet those needs. That approach does not appear to allow for exceptions or consideration of individual circumstances as part of the financial assessment.” That was another way of saying that the council fettered its discretion, which is an instance of outright illegality on the part of the council.
A harder question arising out of this report given that no mention of the salary for any such carer for the holiday, is this: if the holiday was timed to be when the ordinary carer was on holiday, the budget should have had the money for the replacement cost of a carer in it anyway i.e. 13 months rather than 12. So that money could have been spent on a carer’s salary for the holiday care, to our minds, but there is insufficient information to be able to work out whether the 13 months had already been used up to pay the man’s regular carer a higher rate than the council had intended.
Furthermore, in the Council’s own charging policy, Northumberland stated that:
“In assessing DRE, the Council will ordinarily follow the advice contained in the latest version of the Guide published annually by the National Association of Financial Assessments Officers, under the title “Good Practice, Training and Induction Guide on Assessing the Costs of Disability”.
Access to the latest version of this guide is restricted to NAFAO members, but in an older version available online, it specifically states that some twenty years ago NAFAO identified that “Actual additional cost in excess of normal costs for a similar holiday divided by 52.” with “Evidence of actual cost for comparison purposes” would be “potential costs of disability.”
The fact that Council actually said at a meeting that “holidays are not covered by the legislation” suggests that Northumberland was regarding the discretion to be exercised in relation to the eligibility regulations and care planning as one and the same as the thought process required for the identification of DRE. We get the impression from referrals received that that was the preferred direction of travel for councils, over the last few years,but this report and the RB Windsor & Maidenhead decision of mid-2023 (RW v Royal Borough of Windsor and Maidenhead), along with the Suffolk case on the base costs of a holiday (Suffolk’s appeal about holiday and activities costs), let alone a carer’s salary being capable of being part of the actual BUDGET, indicates that NAFAO and the financial assessment world need to update their guidance to reflect current case law.
Now that almost all local authorities charge a contribution for non-residential social care, the assessment of DRE can make a significant difference to the amount a person is required to contribute to their care package. This case is a helpful confirmation from the LGSCO that DRE may well fall outside the scope of a person’s eligible assessed needs, and the care and support provided to meet those needs.
The Minimum Income Guarantee, set out in this Local Authority Circular, and which is designed to ensure that people who pay charges to their Council are left with enough money to live on, has not kept up with the rising cost of living, whilst benefits have increased, so the extra has just been passed back to the councils via the charging framework. The need for people to be able to claim DRE, which effectively supports one’s ability to spend more of one’s disability benefits on the additional ‘everyday’ costs which result from disability, rather than just one’s care charges, is perhaps more pressing than ever.
The full Local Government Ombudsman report on the actions of Northumberland Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/charging/20-001-819