London Borough of Lewisham (18 011 852)

Category : Adult care services > Assessment and care plan

Decision : Not upheld

Decision date : 29 Mar 2019

The Ombudsman's final decision:

Summary: Ms X complained the Council incorrectly calculated her Minimum Income Guarantee as she believes this figure should include a disability premium. She also says the Council requested excessive amounts of evidence as proof of her Disability Related Expenditure. The Council is not at fault.

The complaint

  1. Mr Y complained on behalf of Ms X. Ms X complained the Council has:
      1. incorrectly calculated her Minimum Income Guarantee by not including a disability premium; and
      2. requested excessive amounts of evidence as proof of her Disability Related Expenditure.

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What I have investigated

  1. I have investigated complaint b) in paragraph one. The reasons for not investigating complaint a) are set out at the end of my decision.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
  3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I read the complaint and the Council’s response to it.
  2. I referred to the Council’s policy ‘Adult Social Care Charging and Financial Framework’ and the ‘Care and support statutory guidance’ updated 2018.
  3. Ms X and the Council both had the opportunity to comment on my draft decision.

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What I found

  1. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. Any charges should not reduce a person’s income below Income Support or Pension Credit rates plus 25%. This is called the Minimum Income Guarantee. This provides an income for daily living expenses such as food and bills.
  2. If a person has expenses directly related to any disability they have, the Council should take that into account when assessing their finances. Government guidance to councils says this disability-related expenditure (DRE) can include ‘any reasonable additional costs directly related to a person’s disability’ and, ‘What is disability-related expenditure should not be limited to what is necessary for care and support.’ The more DRE a person has, the less they have to contribute towards the cost of their care.
  3. For the Council to consider spending to be DRE, the claimant must provide evidence to show the need is linked to their disability and must be able to provide receipts of the costs. In these cases, the Council will deduct the expenses from the overall costs of care.

What happened

  1. Ms X receives a direct payment care package of £207.76 per week. Her current assessed contribution is £74.95 per week.
  2. In July 2018 Ms X requested a financial reassessment. She asked for several additional items to be considered as DRE. Some of these had been considered before and refused. These included:
    • extra bedding, she had bought because of nightly incontinence; and
    • privately bought incontinence pads.
  3. The Council said for the extra bedding to be considered, Ms X would need to provide evidence of need and expenditure over the past six months.
  4. The Council would not consider the incontinence pads as DRE. This is because Ms X’s care plan provided help with personal care needs and incontinence pads could be provided by the National Health Service (NHS).
  5. Mr Y complained on behalf of Ms X to the Council, about several items it refused to consider as DRE. The Council did not uphold her complaint and wrote back explaining the reasons for this. It said If the NHS were unable to provide the appropriate incontinence pads, Ms X would need a letter from the District Nurse saying this.
  6. Ms X was unhappy with the outcome and complained to the Ombudsman that the evidence requested by the Council was unreasonable, excessive and put her to unnecessary time and effort. She states to get a letter from the District Nurse she would require a further incontinence assessment and that the Council should contact the NHS directly to see if it can provide the pads she needs.

My findings

  1. The Ombudsman cannot question whether the Council’s decision is right or wrong just because the complainant disagrees with it. We must consider if there was fault in how the decision was reached.
  2. For the Council to consider spending to be DRE, the claimant must provide evidence to show the need is linked to their disability and must be able to provide receipts of the costs.
  3. Ms X has not provided receipts for the additional bedding she purchased because of incontinence. She has not evidenced her need for the additional bedding. Therefore, the Council has not considered it as part of her DRE calculations. The Council is not at fault.
  4. The Council has stated it will not consider privately bought incontinence pads to be DRE as they are provided by the NHS. It has told Ms X for these to be considered, it would need a letter from the District Nurse to evidence why the NHS provided pads are unsuitable. This requires a further incontinence assessment which Ms X feels it is unreasonable to expect her to go through. The Ombudsman cannot decide whether the Council’s decision is unreasonable, only if there was fault in how it was reached. The Council is not at fault.

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Final decision

  1. The Council is not at fault therefore I have completed my investigation.

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Parts of the complaint that I did not investigate

  1. I did not investigate Ms X’s complaint into the calculation of her Minimum Income Guarantee. This is because Ms X complaint challenges the Council’s interpretation of the law which is a matter for the Court’s and not the Ombudsman.

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Investigator's decision on behalf of the Ombudsman

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