Decision Date: 13 March 2023
What happened
Ms Y had care and support needs – which she received via funding for three hours a week of short breaks until early 2021.
The Council told Mr X, Ms Y’s father, that the support needed to come in the form of a direct payment [for reasons which do not appear in the report itself].
In early 2021, the Council conducted a financial assessment of Ms Y and determined that she would be able to make a financial contribution of up to £86.77 per week towards the cost of her care.
The Council wrote to Mr X in February to inform him of this decision and sent a form to set up the direct payments in March 2021, suggesting Ms Y be supported by a shared care service for three hours per week, at £18 per hour, bringing the total cost to £54 per week.
The ongoing support was taken to a panel in April where it was agreed for Ms Y to receive four hours of support each week at a cost of £18 per hour with the total direct payment budget being rounded up to £3,800 for the year [for reasons which do not appear from the report].
Mr X’s wife signed the direct payment agreement in May, but then chased the Council in July as no direct payment had been set up.
The Council responded and advised Ms Y’s assessed contribution of £86.77 per week exceeded the value of the direct payment (£54 per week) and therefore Ms Y could not have the direct payment.
Mr X and his wife continuously followed up with the Council from July to September, requesting updates and a review of the decision. The Council reviewed Ms Y’s financial assessment in September following a request from Mr X and reduced Ms Y’s assessed contribution to £66.77 per week, still higher than the value of the direct payment [Although this is what the LGSCO report states, it also states that the annual DP agreed by panel was £3,800 per year, or approximately £73 per week, which is in fact higher than the assessed contribution, but the council’s excuse was that this was a contingency, albeit not explained to the family/client].
In October, Mr X requested another financial review, citing the Council’s supposed policy of allowing an additional 25% on top of the minimum income guarantee (MIG) and claiming that the Council had not considered additional disability related expenses (DRE) such as medication, special clothing, gym membership, and sanitary wear. The Council agreed to undertake another review, but excluded gym membership as DRE.
After completing another review in January 2022, following correspondence from Mr X which advised Ms Y could not afford all of her expenditure with the current level of contribution, the Council allowed an additional £28 per week for Ms Y’s gym sessions as DRE. However, Mr X challenged this, arguing that the gym sessions cost £45 each and occurred six times a month. He claimed to have discussed this with the Council on 10 January 2022 who advised Mr X that the DRE was incorrect and would be updated [the report is silent on what Mr X contended that the DRE figure would be updated to, however, e.g. whether this updated figure included the full cost of the gym sessions]. The Council had no record of the conversation.
Mr X requested an update in February 2022.
In March, the Council responded to Mr X, stating that only 50% of Ms Y’s monthly gym membership fees would be disregarded from the financial assessment “due to her excess income of £220.36 per month” as they believed Ms Y could pay the rest herself. The Council also made small allowances for sanitary and medication expenses.
Mr X insisted that the Council fulfil its promise of paying the direct payments in full based on their phone conversation on 10 January 2022 [i.e. the same conversation where Mr X asserted that he was told that the DRE was incorrect and would be updated, but which the Council had no record of].
Mr X lodged a complaint on 5 April 2022, expressing distress caused to him and his wife and arguing that Ms Y should not have to contribute to the cost of her care.
In April 2022, the Council conducted another financial assessment and reduced Ms Y’s contribution to £31.45 per week for the 2021/2022 financial year, taking into consideration the rate of inflation.
In addition, the Council provided the result of Ms Y’s new financial assessment for the following year, with an assessed contribution of £5.99 per week. The Council sent its stage one complaint response on 13 May 2022, acknowledging some delays but making no further changes to Ms Y’s assessed contribution [the report is not entirely clear, but we think this means that the contribution was not changed from the £5.99 per week figure which resulted from the most recent financial assessment].
Mr X was still dissatisfied and requested that his complaint be escalated to stage two. The Council issued its final complaint response on 11th July 2022, stating that there was no record of the Council agreeing to fund the direct payment in full. It clarified that while a formal notification of the direct payment decision was not sent in 2021, this is now part of its process. As a resolution, the Council offered Mr X £100 for distress and £150 for his time and trouble.
What was found
The Ombudsman acknowledged Mr X’s frustration and disappointment with the Council’s handling of the situation. The Council initially approved direct payments and Mr X’s wife completed the necessary forms, raising their expectations. However, it was only after several months and their own contact with the Council that they discovered Ms Y would not receive direct payments because of its net payment approach [‘netting off’ the contribution from the direct payment has been a common and legitimate practice among councils for a long time because the charge is treated as the first part of a person’s package by s26 – the section that identifies the constituent elements of a Personal Budget].
The Council were found at fault for not sending formal notification of the direct payment decision to Mr X. The Council acknowledged this and now includes this as part of its direct payment process.
The Ombudsman found that the panel meeting, held two months after Ms Y’s financial assessment and one month after the Council determined the weekly cost of Ms Y’s care package, was unnecessary, as the Council should have known beforehand that the contributions were going to be higher than the direct payment. The outcome of the panel meeting was not communicated to Mr X, which was also fault.
Overall, the Ombudsman found there was a lack of proper oversight by the Council. The Council handled the financial assessment and direct payment process poorly, initially indicating approval to the family, and asking them to sign the direct payment agreement, only to later inform them that Ms Y was not eligible as her contribution was higher than the cost of care [We think that saying Ms Y was not ‘eligible’ for a direct payment is a poor choice of wording, as one is very rarely ineligible, as such, for one]. The Council were also responsible for delays in responding to Mr X and his wife’s requests for updates, appeals, reviews and reconsiderations.
Even though the assessed available income went down as more DRE was allowed, it seems that she was only ever intended to have three hours a week of short breaks, not four; the Council said that the rest was a contingency. However, there was no evidence of that at all, Ombudsman also found.
The Council reviewed Ms Y’s financial assessments and admitted an error in calculating the 2021/22 financial contribution. They acknowledged that Ms Y’s assessed weekly contribution should have been £8.39.
With regard to the inclusion of gym membership fees as disability related expenses (DRE), the Council exercised discretion by including some but not all of the fees. It did not have to include the full fees. The Council’s duty is to include all reasonable costs directly associated to a person’s disability. The officers deemed it reasonable for Ms Y to pay some of the gym fees herself based on her income.
The Ombudsman found that whilst the Council offered £100 for distress and £150 for time and trouble, the Council should increase the payment offered to the family due to raising family expectations about what support Ms Y would receive.
The Ombudsman concluded there was fault which caused injustice as the Council failed properly to oversee the direct payment process and made an error in its calculations.
It was agreed that the Council would pay £450 to Mr X for the distress, time and trouble incurred and that the direct payment (the difference between her charges and the amount that had been authorised) would be backdated to 2021 when Ms Y had become eligible for more support.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
We think this report by the Ombudsman leaves a lot to be desired. The original report is hard to follow, difficult to understand and does not delve deep enough to provide the desired level of detail.
Waltham Forest’s practice clearly demonstrates they did not have the correct procedures in place for setting up direct payments at the time, which is hard to believe since direct payments were first introduced with the Community Care (Direct Payments) Act 1996.
We cannot conceive of how a council managed NOT to explain how direct payment and the funding subsidy work over such a long period (see further, below).
It was several months after the outcome of the financial assessment results that the family were informed they could not have the direct payment due to the care contribution exceeding the actual cost of care. The direct payment progressing to the point it did without any professional noticing this and proactively informing the family could ONLY lead to an outcome of confusion, mistrust and stress.
Anyone trying to get their heads around the charging system needs to factor in that it was not the assessed charge that exceeded the cost of care: it was the maximum amount she could have been charged, based on the rules-based financial assessment, before the care plan was even finalised, it seems. As such, since the offered services cost less than that maximum, she could get no financial benefit from a direct payment – no subsidy, in effect. It would be paid net of the charges, and thus the value of it would be wiped out.
We often see councils doing this as a deterrent to even getting a care plan finalised, because they say it proves that there is no point. But this is not the full picture.
If it had been paid in full, she would have been invoiced for the charges, and been no better off, but nobody explained that the decision could have been challenged on the basis of her possibly lacking capacity to have a direct payment in her own name. We are surprised that the report did not comment on the inappropriateness of the council TELLING the client/her family that she must have her short breaks by way of a direct payment. That’s a fundamental wrong under the legal framework, which seems not to have been thought worthy of attention although the investigator recites that consent is necessary.
One is very rarely ineligible as such for a direct payment; one is granted or refused the conversion of a personal budget, into a direct payment on set grounds, and having been approved, the decision whether to pay net or gross is a separate decision-making function. A person could be someone who needs to pay full cost, and lacking in capacity but needing the money to be paid in full because of not having anyone to manage their personal finances. An Authorised Person may have been found who was not also the appointee for benefits, and thus not able to access the charges money. But it’s not possible to be sure with a report of this degree of opacity.
The stance on the gym – allowing 50% without more comment – is surprising to us and is something we think that the investigator should have probed further. The council needed a reason for saying why 50% was DRE rather than any other percentage. While Mr X disagreed, no evidence of fault was found in the Council’s decision-making process. The test is not affordability, however, but whether the gym cost was disability related. We think it’s not a bad idea to apply a percentage to costs that disabled people incur, which OTHER people incur too, but out of which a disabled person obtains a specific benefit.
The amount claimed was for the gym and a personal trainer. If one says that the trainer was a luxury, one would need to consider how Ms Y would cope without one at the gym. If they were saying it was a posher gym than was necessary, that’s different, and understandable…but if they were just saying that 6 times a month was a want and not a need, they should have had the courage to articulate their reasoning.
The full Local Government Ombudsman report on the actions of London Borough of Waltham Forest Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/direct-payments/21-017-787