London Borough of Sutton (18 019 872)

Category : Adult care services > Assessment and care plan

Decision : Not upheld

Decision date : 30 Sep 2019

The Ombudsman's final decision:

Summary: Mrs X complains about the Council’s refusal to allow privately funded care costs as disability related expenditure and faults with her care and financial assessments. The Ombudsman has not found fault in what the Council did. Its assessments were in line with relevant law and policy.

The complaint

  1. Mrs X complains about the amount she had been assessed as being able to pay towards her home care costs. She says the Council should have taken account of private care costs and her family’s travel costs. She also complains about other aspects of the care and financial assessments.
  2. Mrs X is represented by her son, Mr D, in making this complaint.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. 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. As part of my investigation I discussed the complaint with Mr D and considered information he provided. I made enquiries of the Council and considered its responses. I also had regard to the relevant legislation and guidance. I set out my initial view on the complaint in a draft decision statement and invited comments from both parties. I have considered the comments received from Mr D.

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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. The scheme must comply with the principles in law and guidance, including that charges should not reduce a person’s income below Income Support plus 25%. The council can take a person’s capital and savings into account subject to certain conditions. If a person incurs expenses directly related to any disability he or she has, the council should take that into account when assessing his or her finances.
  2. DRE only includes costs due to disability that someone without a disability would not have and can include the cost of any privately arranged care services.
  3. The Council’s policy states, “Disability related expenditure includes costs of any privately arranged care services, as agreed as necessary during support planning, including respite care…for example – day or night care which is agreed as necessary but not arranged by the local authority”

National Association of Financial Assessment Officers – Good practice Guide – Assessing the Costs of Disability - Privately arranged care

  1. This is a practice guide used by finance officers to supplement the statutory guidance. The Council says it refers to this when making decisions about DRE and is relevant to this complaint.
  2. In respect of whether councils should include private care costs as DRE the guidance states the following should be included as DRE: “Actual cost if social worker confirms requirement as part of the Care Plan and Council supported care is reduced accordingly.”

What happened

  1. There has been extensive correspondence between Mr D and the Council. It is not my intention to detail all the correspondence exchanged. The correspondence follows a common thread and relates Mr D’s dissatisfaction with the assessment process, support plan and resulting financial assessment.
  2. I have set out below a summary of the key events. But it is not meant to show everything which happened.
  3. Mrs X is 89 and lives in her own home. She has dementia and requires support with her daily care needs. Up until March 2018, she had used her own funds to pay for her care as she had over the above threshold of capital to qualify for Council assistance.
  4. In March 2018, Mr D contacted the Council to say Mrs X’s capital had fallen below this threshold. The Council carried out an assessment and determined she was eligible for support.
  5. The assessment concluded that Mrs X had a number of eligible care needs including “being able to use her home safely”. The assessment acknowledged that she is rarely left alone following a number of previous incidents where Mrs X put herself at risk. Having considered these, the social worker concluded that, “it is clear that if left alone for substantial periods of time, Mrs X would be at risk of leaving her home without a destination and would be unable to access services or return independently or safety”.
  6. In determining Mrs X’s support plan, the Council said there was no evidence that Mrs X’s had night time care needs that were eligible for support. The hourly care calls were over and above what would normally be provided to someone with dementia, and if such needs did exist, the Council would consider whether they could be met in other ways such as door sensors and a telecare alarm, rather than someone being with Mrs X continuously.
  7. The assessment concluded, “Mrs X continues to require a substantial degree of support” but because of uncertainty about the extent of her needs the social worker recommended that it should conduct its own assessment over a 72 hour period. Mr D said he was concerned about this because it would be too distressing for Mrs X to have strangers in the house. The Council agreed it had sufficient information already so the further assessment was not actioned.
  8. The Council’s care and support plan determined that Mrs X’s needs could be met by way of 31 hours of support per week. This would be managed by four hourly care calls per day, plus three additional hours.
  9. The Council carried out a financial assessment. Mrs X’s client contribution was assessed at £69 per week. Within the financial assessment, the Council had made allowance for her disability related expenditure including cleaning and boiler maintenance. This had reduced the amount she needed to pay.
  10. Mr D said the financial assessment was wrong because it did not include the cost of the private care she continues to pays for herself or necessary transport costs incurred by her family when looking after her. He says this expenditure supplements what the Council does not provide, but that it should.
  11. Mr D also says the financial assessment is incorrect for the following reasons:
      1. The date of her claim was backdated incorrectly (2 April rather than 27 March)
      2. Inflated figures were included in the “tariff from capital” part of the financial assessment. He also says there has been “double counting” of attendance allowance.

Mr D says this has led to Mrs X being asked to pay too much for her care.

  1. The Council’s position is that If her family choose to pay for extra care this will not be counted as DRE because it is their choice to do so rather than to meet a disability related need that the Council does not meet.

Analysis

  1. We are not an appeal body, so cannot comment on the judgements and decisions made by councils in the absence of fault in the process. Neither are we a court, and so we cannot determine the law about what councils must consider when assessing how much a person can pay for care. Our role is to review the process by which decisions are made and decide if there is fault in that process.

Mrs X’s financial assessment

  1. In response to my enquiries the Council has provided an explanation for the complaints Mr D raised about the financial assessment, including the date Mrs X’s claim was backdated to, what was included within her capital and its treatment of attendance allowance.
  2. In summary, the Council has said:
  • The Council used 2 April as the date upon which Council support started because “the financial assessment outcome was under the capital threshold from Monday 2 April. This is in line with other benefit entitlements such as housing benefit”. The Council’s complaint response stated that such assessments apply from the Monday following the date of the assessment in line with other benefits.

While I understand this logic, there is no reference to alignment with other benefits within the Council’s own charging policy. I suggest there should be to avoid this type of discrepancy. However, I consider this to be a minor fault and no significant injustice has arisen form this.

  • Mrs X’s capital had not been reduced to allow for an outstanding care bill because at the time of the assessment this bill had not been paid. The Council has said that if the bill has been paid, and Mr D can provide proof of this then the account will be adjusted accordingly. Mr D should discuss this directly with the Council.
  • The Council said Mrs X’s bank balance was included as capital because Mr D had confirmed he had been using her attendance allowance to pay for care from this account. It said there was no evidence that her bank balance included accrued attendance allowance. This benefit had been included as income within the financial assessment. I agree with the Council’s position here, but if Mr D has evidence that not all of Mrs X’s attendance allowance was used for care and her bank balance included unspent attendance allowance then this should be sent to the Council for consideration and possible adjustment of the assessment.
  • Mr D says the Council incorrectly treated attendance allowance as income rather than an expense. The statutory guidance is clear that the lower rate attendance allowance should be included as income within the financial assessment. This is what the Council has done and so there is no fault here.
  1. Taking this into consideration, I have not found any fault in how the Council carried out its financial assessment. It properly followed the statutory guidance. Further adjustments are possible if Mr D provides additional evidence to the Council as set out above.

Disability related expenditure

  1. The statutory guidance states that where someone is paying for care because of their disability, as Mrs X does, a council can consider whether to treat this as DRE. This does not mean a council must do so in respect of all privately funded care.
  2. The Council’s policy states that it will pay for private care when it is meeting an assessed care need that is not being met by the Council. To determine this aspect of the complaint, I have carefully considered the Council’s care needs assessment. For me to uphold Mrs X’s complaint I would have to decide there was fault with her assessment and that Mrs X had assessed care needs that were not being met by the Council.
  3. The Council said its assessment had not demonstrated a need for Mrs X to have personal support through the night. But in response to Mr D’s concerns about this, it proposed to carry out a further assessment.
  4. I cannot say the Council was wrong for insisting on its own assessment prior to making a decision about her overall care needs. This was the professional judgment of the social worker team to decide. The Ombudsman does not interfere with such day to day decisions so long as the correct procedures are followed. I am satisfied they were in this case. The Council accepted there may be a need for care at night. But the Council said it needed to carry out its own assessment. I cannot criticise the Council for this approach. It took on board what Mr X said about Mrs X becoming distressed and accepted it had sufficient information to make a decision about her support plan.
  5. I cannot criticise the Council for its approach here. The Council has accepted Mrs X may have care needs at night, but has the final say on how these needs will be met, having taken into consideration what her family say. It has done so here. In response to Mr X’s complaint and my enquiries, the Council has offered to revisit the assessment. If Mr D remains dissatisfied with Mrs D’s current support plan, he should accept this offer.
  6. I must then decide whether the Council was correct when it decided not to include private care costs. Mr D says the law says they should be included. The Council’s policy says that privately arranged care can be included as DRE if it is agreed as necessary in the care plan but has not been met by the Council.
  7. Because night time care was not an assessed need, the Council determined that the existing arrangements were a choice rather than a requirement and so no allowance was made for this expenditure within her financial assessment. I have not found fault with this assessment, so I do not find fault with the way the Council assessed her DRE.
  8. Similarly, any costs incurred by family members travelling long distances to care for her, were also a choice rather than to meet a need that had been identified in her care plan. There was no obligation on the Council to include these costs as DRE.
  9. The Council properly considered Mrs X’s DRE and made a number of allowances in line with good practice guidelines. It was not obliged to make any further allowances for needs that had not been identified in her assessment.

Conclusion

  1. For the reasons above I do not find the Council to be at fault in how it assessed Mrs X’s contribution towards her care costs or the allowances it has given her in relation to disability related expenditure.
  2. The Council has continued to offer Mrs X a review of her care needs assessment.

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Final decision

  1. The Ombudsman has not found fault in the way carried out a care and financial assessment of Mrs X.

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Investigator's decision on behalf of the Ombudsman

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