Decision Date: 23 Sep 2024
Summary
Brighton & Hove City Council issued an apology and agreed to revisit Ms X’s financial assessment after the LGSCO found fault in its decision to exclude her private prescription of medical cannabis as disability-related expenditure
What happened
As Ms X is eligible for care, the Council conducted a financial assessment to determine her contribution towards the cost of her care.
The Council decided that certain expenses, including the cost of repairing and maintaining the roof of her property and her private prescription for medical cannabis, would not be counted as part of her disability-related expenditure (DRE).
In response, Ms X lodged a complaint. She provided the Council with supporting documentation, including a letter from her GP confirming her use of medical cannabis and explaining that it was unavailable through the NHS for pain relief. She also submitted medical reports from professionals detailing other medications she had previously tried and which were unsuccessful.
The Council agreed to review Ms X’s housing repair costs if she provided invoices and payment proof. However, it maintained that her prescribed medical cannabis fell under NHS provision and would not be considered in her DRE.
After prompting from the LGSCO, the Council upheld its decision that prescribed medication falls under the NHS’s remit. It cited information online showing that obtaining medical cannabis prescriptions is possible in limited circumstances and stated that the cost of the medication was unreasonable.
What was found
Upon investigation, the LGSCO found fault in the Council’s process:
- Ms X had, from the outset, clearly explained and provided medical evidence that she could not obtain medical cannabis for pain relief through the NHS. The Council’s own financial assessment assessor supported this fact. However, the Council did not fully consider this evidence.
- Ms X submitted evidence that alternative medications could pose a serious health risk, which the Council failed to address.
- The Council stated the medication costs were unreasonable but did not explain how or why this conclusion was reached.
Following this decision, the Council agreed to apologise to Ms X and reconsider whether Ms X’s prescription for medical cannabis could be included as DRE:
- If it is not to be included, it must set out its full rationale.
- If it is included, the costs should be backdated to when Ms X made the initial request.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
It is common for Councils to refuse to allow expenditure on things to relieve health problems, as DRE, citing either that if it was needed, it would be available for free, or even more baldly simply on the basis that it is a Health Need – as if that was an excuse justifying the rejection.
The report cites the provision in s22 of the Care Act that prohibits any council when meeting an adult’s needs for care and support, a local authority from providing healthcare services which are the responsibility of the NHS. It has never been considered whether allowing private expenditure on something that IS required to be funded by the NHS as a disregard of someone’s charges, would amount to a breach of this provision, but this lady’s situation was for something that was NOT able to be obtained from the NHS.
DRE disregard is a duty under the regulations. The only discretion that the Council has is as to whether the expenditure is related to disability, which does not have to be the disability that has led to one’s eligibility for adult social care, and whether it is necessary.
Since physical or mental impairment or illness is part of the triggering process for access to adult social care funding, the fact that it is a health related problem that one is trying to reduce the impact of, with one’s own expenditure, cannot of itself be a sufficient basis for rejecting the expenditure as DRE.
IF something is available for free from the NHS, then as long as it is suitable and otherwise appropriate, spending one’s own money is not necessary (apart from the prescription cost, as to which nothing is said in the Guidance.)
However, the NHS often limits access to services on NHS footing, and to medicine as well, to save money, and that means that a GP cannot easily prescribe such things to people who are outside the criteria. That does not logically mean that for people outside the criteria there is no benefit to be obtained from the treatment and that as such, spending money on it can be found not to be ‘necessary’.
The investigator inevitably politely concluded that the Council had not appeared to have engaged with the evidence provided to support that the medication could not be obtained via the NHS due to what Ms X uses it for (ie went from ‘a’ to ‘c’ without grappling with ‘b’!).
The NHS criteria for medical cannabis are found here.
Currently, it is only likely to be prescribed for the following conditions and even then only considered when other treatments were not suitable or had not helped:
- children and adults with rare, severe forms of epilepsy
- adults with vomiting or nausea caused by chemotherapy
- people with muscle stiffness and spasms caused by multiple sclerosis (MS)
The NHS line is that there is some evidence medical cannabis can help certain types of pain, though this evidence is not yet strong enough to recommend it for pain relief.
The NHS site says that many cannabis-based products are available to buy online, but their quality and content is not known. They may be illegal in the UK and potentially dangerous.
Some products that might claim to be medical cannabis, such as CBD oil or hemp oil, are available to buy legally as food supplements from health stores. But there’s no guarantee these are of good quality or provide any health benefits.
The wider point though that this report raises, to our minds, is to what extent will something that is good for you, as opposed to essential, be allowed. People do spend their money on all sorts of things simply because they’ve read about it and have tried it and are convinced it’s doing them some good – promoting their wellbeing. If every single person claimed DRE for everything that they were able to benefit from, the cost of living and the power of social media would be laid at the door of social services.
Every penny disregarded as necessary and related to a person’s disability is another penny that the council cannot ‘get in’ to subsidise its dire financial position, due to Treasury intransigence in funding the full extent of the Care Act duties imposed by Parliament on those very same councils.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Brighton & Hove City Council (24 001 331) report.
If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
Did you enjoy this analysis? Want to stay informed with our weekly Alert Service?
Then do click here to find out how you can receive the latest insights from experts and commentators and stay updated on key judicial decisions, ombudsmen’s reports, and critical law and policy changes, all for just £50 per YEAR and sent straight to your inbox or WhatsApp!