Decision Date: 15 Jan 2025
Summary
The LGSCO held Kent County Council at fault for its failure appropriately to consider a disability related expenditure claim, meaning Mr Y was overcharged for care.
What happened
Mr Y received a care package from the Council to support him with his learning difficulties and various other health diagnoses, and was represented by his mother (Miss X) in dealings with the Council. He began to be charged for his services in December 2022.
In March 2023, the Council sent Miss X a letter advising her to contact the Council’s financial services team, as Mr Y would soon receive additional benefits (in the form of universal credit payments).
Miss X reached out to Mr Y’s social worker to ask whether a Disability Related Expenditure Assessment (DRE) could be completed straight away, in order that the extra costs caused by Mr Y’s disabilities would be considered when deciding how much he should pay towards his care.
In response, the social worker just told Miss X to wait until the Council had sent a letter outlining the contributions Mr Y would be expected to make towards his care.
Mr Y’s overall benefits were duly increased, at which point Miss X contacted the financial services team. The team sent Miss X a letter in April 2023, stating that Mr Y was required to make a weekly contribution of £51.37 towards the non-residential care and support services he received.
Miss X contacted the social worker to begin the DREA process. Miss X continued to contact the financial services team and the social worker between April-August 2023 to ask whether the assessment had been completed.
At the end of August 2023, the social worker told Miss X that the Council had agreed the amount that Mr Y could claim as a disregard for Disability Related Expenditure (DRE), which would remain in place for the next year. The social worker said that given the finance team had only received the form in July – the DRE allowances would be agreed from this date.
Miss X countered that this was unfair as she had followed the advice she had received and was not responsible for delays on the Council’s part.
In October, the social worker told Miss X that she would discuss this with her manager to see if the DRE allowance could be backdated to the time at which Mr Y had begun to be charged for his care, and the date to which his increased benefits had been, by now, backdated. However, this was deemed not to be possible. In mid-December the social worker told Miss X that the Council would begin the DRE allowance period from when the DRE process was started (mid-April 2023).
In December 2023, Miss X formally complained to the Council regarding the delay in beginning the DREA and the start date of the DRE, asking that the Council backdate this to the time at which Mr Y’s financial contribution had been backdated to (which was December 2022, along with the increased benefits).
The Council responded in April 2024:
- apologising for the delay in completing the DREA;
- explaining that it would not backdate the DREA to December 2022, but to the end of March 2023 instead; and
- referring Miss X to the LGSCO.
Consequently, Miss X complained to the LGSCO.
In September 2024, the Council emailed the LGSCO to convey its new decision to backdate Mr Y’s DRE allowance further, acknowledging that its initial decision failed to consider that Miss X would have requested a DREA earlier if Mr Y had received an increased benefit from December 2022.
Consequently, the Council explained that it had decided to re-assess Mr Y’s financial contribution from December 2022 and either refund him directly or credit his care and support account towards future payments. The Council also said that it intended to apologise to Miss X for the trouble it had caused her, offer her £100 as a goodwill gesture, and send her a copy of the completed DREA.
In October, the Council further told the LGSCO that Miss X had accepted its remedy and was content with this outcome. However, in December, Miss X said that the Council had not contacted her since October to either apologise, provide her with the £100, or send her a copy of the DREA form.
What was found
The LGSCO found fault with the Council’s original decision not to backdate Mr Y’s DRE allowance, as this did not consider the likelihood that Miss X would have begun the DREA process earlier had Mr Y actually been in receipt of the increased benefit at this earlier stage. This caused unnecessary distress and trouble for Miss Y, and also meant that Mr Y had over-contributed to the cost of his care.
However, the LGSCO acknowledged that the Council had since recognised this, and agreed that the remedies the Council had set out in their September correspondence were appropriate. As such, the LGSCO agreed with the Council that it should complete these actions within four weeks, and provide evidence of its completed actions. [It is not clear from the report why they had delayed on the follow-through].
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
Sections 14 and 17 of the Care Act 2014 provide that a local authority can charge a person for the receipt of non-residential care, however this must follow the guidance provided in the Care and Support (Charging and Assessment of Resources) regulations, as well as the Care Act statutory guidance.
The statutory guidance makes clear that local authorities must carry out a financial assessment where it decides to charge a person for the provision of care, and must ensure that people are not charged more than is practicable for them to pay. When deciding how much to charge a person, the local authority can consider disability-related benefits income, but this should be accompanied by a DREA to ensure that the person has enough benefit to pay for extra costs caused by their disability that the local authority is not covering. The concept of the need not covered, does not have to be eligible Care Act need in order to count as DRE and the council must take account of wellbeing in its charging functions as well as any other.
In this case, the Council did not complete a specific DRE assessment before charging Mr Y for the care he was receiving, and did not appear to have a policy regarding backdating of evidence of DRE from the inception of the charge. This probably meant that he contributed more than necessary as the extra costs he incurred because of his disability were not taken into account when the Council decided how much he should pay towards his care.
However, his financial affairs informal supporter’s initiative was triggered by his qualifying for universal credit, and it appears from the report, albeit obscurely, in one line, that he got a back-dated payment for that too. So her point that she would have started the process sooner had she known he was going to be deemed to have been in receipt of that extra benefit was well made.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Kent County Council (24 004 188) report.
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