Decision : Upheld
Decision date : 16 Feb 2021
The Ombudsman's final decision:
Summary: The Council was at fault in the drafting of Mrs X’s care plan and the response to Ms A’s first complaint. It reviewed the response and upheld some aspects of the complaint but there was a delay. It agrees to apologise for the distress and anxiety caused by the omissions and delay in its processes and offer Mrs X a sum in recognition of that. It also agrees to expedite the annual review of Mrs X’s needs. It was not at fault in taking into account her Disability Living Allowance as part of her income.
- Mrs A (as I shall call the complainant) says the Council failed to assess accurately her mother’s (Mrs X’s) needs. She says the Council did not properly assess her emotional and social needs or include them in any care and support plan; and delayed in recognising the extent of her disability-related expenditure. She says the Council still has not made any allowance for expenditure on the special shoes Mrs X needs, or the telephone/alarm system which Ms A describes as her mother’s lifeline. The Council gave insufficient information about the financial assessment.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)
How I considered this complaint
- I considered the information provided by both Ms A and the Council. I spoke to Ms A. Both Ms A and the Council had an opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.
What I found
Relevant law and guidance
- Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14)
- 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: charges must not reduce people's income below a certain amount but local authorities can allow people to keep more of their income if they wish. This amount is known as the Minimum Income Guarantee (MIG).
- The Care and Support Statutory Guidance says:
(Annex C) 16.” Any income from the following benefits must be taken into account when considering what a person can afford to pay towards their care from their income:
(d) Disability Living Allowance (Care component)”.
- 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. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)
- The Guidance also says (Annex C, para 39 ff.) “Where disability-related benefits are taken into account, the local authority should make an assessment and allow the person to keep enough benefit to pay for necessary disability-related expenditure to meet any needs which are not being met by the local authority.
In assessing disability-related expenditure, local authorities should include the following…. special clothing or footwear, for example, where this needs to be specially made; or additional wear and tear to clothing and footwear caused by disability….”
- The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:
- because he or she makes an unwise decision;
- based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
- before all practicable steps to help the person to do so have been taken without success.
- Mrs X is an elderly lady who lives alone. She receives higher rate DLA (Disability Living Allowance). She was in hospital for a while at the start of 2019. The hospital ward referred her to the local Adult Social Care team when she was ready for discharge.
- An assessor arranged to visit Mrs X on 24 January to undertake a needs assessment. The Council’s records show a request dated 2018 for a family member (or advocate) to be present at Mrs X’s appointments. The assessor contacted her daughter (Mrs B, Mrs A’s sister) on 23 January to let her know. Mrs A says the assessor told Mrs B it would be an “informal chat”.
- When Mrs A and Mrs B arrived at the appointment, they found the assessor had arrived very early and had already mostly completed the assessment without them present. Mrs A says the assessor told Mrs X any charge would be minimal. Mrs X signed a financial consent form on the day of the assessment.
- The outcome of the assessment was that Mrs X needed four support calls a day. The assessor completed a support plan on 7 February and Mrs X was discharged home on 11 February with a package of care provided by the reablement service. The assessor reviewed Mrs X’s continuing needs on 7 March and assessed she now needed three calls a day. He referred her to the finance office for a charging assessment and also made a referral to source a care agency to provide the calls.
- A care agency began to provide Mrs X’s care on 18 March.
- Mrs X completed and returned a self-assessment form to the finance office. She noted her disability related expenses which included clothing, bedding and laundry because of her incontinence, gardening, her community alarm, private domestic help and transport costs. She said she had to keep her heating on even in summer because she could not be mobile. She also noted her utility cost, water charges, insurance and decorating costs.
- On 11 April the Council wrote to her with a breakdown of her charges and a note of how it had calculated them: this showed the Council had taken into account her DLA as income. It assessed her contribution at £142 a week (for her care and her community alarm). It said it had taken into account her expenditure on council tax and allowed an amount towards laundry costs. It had not taken into account expenses on gardening or incontinence pads as it required four weeks of invoices. It had not taken into account expenditure on gas, electricity or insurance as she had not provided bills. It did not take into account expenditure on her telephone, water, gas cover or contents insurance.
- On 18 April Mrs A telephoned the finance office about the charges. She said Mrs X had understood she would not be charged as the care had started weeks before she received the letter. She said the social worker told her mother funding had been approved.
The first complaint
- Mrs A and Mrs B complained to the Council to 26 April. They said the assessment process had been horrendous and the impact on Mrs X of the financial assessment particularly significant, principally because of the weight given to information in the letter about the debt collection process if contributions were not made. She said the assessment had not been shared with Mrs X or the family. She said the assessor had passed off the suggestion of charges as insignificant. She said there was too little explanation of the disability- related expense system. She asked for Mrs X’s needs to be reviewed as the assessment had not included Mrs X’s social and emotional needs, or needs which she was meeting other than with help from the Council.
- An officer investigated and responded to the complaint in May. She said the assessor had contacted Mrs B on 23 January about the appointment the next day but Mrs B had not attended. She said the assessor had told Mrs X she might have to make a contribution towards the cost of her care but it would depend on the outcome of the financial assessment. She said there was no record of the need for a family member to be present at appointments. She said Mrs X had signed the completed support plan. She did not uphold the main aspects of Mrs A’s complaint.
- In respect of the budget, the officer said the assessor would not have been able to say what the likely contribution would be. The assessor told her Mrs X had capacity so there was no requirement for a family member to be present when he met her. She did not uphold Mrs A’s complaints about the budget.
- The officer said Mrs X could supply additional evidence of disability related expenditure if she felt it was warranted. She said the letter could have included more detail about the evidence needed and for that reason she partially upheld this aspect of the complaint. She arranged for an officer to discuss the matter further with Mrs X.
- Mrs X and Mrs A submitted several more requests for disability related expenditure over the next few months.
- In October the team leader in the finance officer wrote to Mrs X explaining all the further allowances she had made. She made an allowance for incontinence products and for gardening backdated to March. She upheld a previous decision to allow £30 a week DRE for private domestic help. She allowed a standard rate for laundry costs.
- The team leader did not make allowances for Mrs X’s foot care as the Council deemed this was a health care need. She did not make an allowance for her telephone line: she said the line was not installed solely for Mrs X’s disability-related needs and therefore would not count as DRE.
- The outcome of the reconsideration was that Mrs X’s contribution was reduced to £96.75 (including a charge of £2.83 for her community alarm).
The second complaint
- Mrs A complained again to the Council in November 2019. She said the initial response to her complaint had been inaccurate, as had many of the documents sent by the Council. She said poor consideration had been given to Mrs X’s disability related needs during the financial assessment and that had led to the initial contribution set at £141. She said that had been an immense shock to Mrs X who had suffered anxiety since then as a result, particularly as even after Mrs A’s request for reconsideration the Council had issued an incorrect demand for £1000. She said the language of the Council’s communications and their references to debt collection had been frightening for Mrs X.
- The service manager reviewed the previous complaint investigation and the social care records for Mrs X. She wrote to Mrs A with her response in February 2020. She upheld Mrs A’s complaint that the Council’s records should have noted a request for family members to be present at Mrs X’s appointments. She did not uphold the complaint that the assessor had said the assessment would be ‘an informal chat’. She partially upheld the complaint about the way the assessment had been conducted in January 2019 as she said the assessor should not have started early when he knew family members were attending, but she did not uphold the complaint about poor documentation as it was clear the assessor had taken notes. She apologized that the family had not received a copy of the support plan although she said the assessor confirmed he had posted it.
- The service manager did not uphold Mrs A’s complaint that the assessor had said charges would be insignificant: she said he maintained he has clearly said he could not say what the level of charges would be. She did not uphold a complaint that there was unclear information about charging as the family assumed once the Council said it would fund Mrs X’s care, there would not be a further contribution.
- The service manager upheld a complaint that the incorrect family members had been identified as present on the day Mrs X was discharged from hospital. She upheld Mrs A’s complaint that the assessor had visited without notifying her and not posted out a copy of the review plan. She did not uphold a complaint that Mrs X had signed the plan as Mrs X was deemed to have capacity to do so, but she did uphold a complaint that the plan did not reflect the support Mrs X organized for herself and paid for privately. She upheld the complaint that insufficient information had been provided about the financial assessment and the costs of care.
- The service manager apologized to Mrs A on behalf of the Council. She undertook to recommend additional training on record keeping and maintaining up to date records about service users and their preferences.
- Mrs A complained to the Ombudsman in February 2020. She complained that Mrs X’s DLA (Disabled Living Allowance) had been treated as income while few of her disability related expenses had been accepted. She said Mrs X could not afford the contribution at the rate it was set. She complained about the emphasis on debt collection in the Council’s financial communications which was a source of considerable worry for Mrs X. Finally, she said although the Council had upheld and apologized for some aspects of her complaint, this was only because of poor record keeping and not because the Council accepted the truth of the complaints.
- The Council’s records show it undertook a review in April 2020 by telephone (in view of Covid 19). However, Mrs A says neither she nor Mrs X were told this was the annual review. Mrs A says it was an impromptu telephone call which did not properly review Mrs X’s needs other than to ask if she was happy with the care package from the agency.
- The Council had a duty under the statutory guidance to take Mrs X’s DLA into account in assessing her financial contribution. That was not fault on its part.
- It took some considerable time for the totality of Mrs X’s disability related expenses to be assessed and determined, although that was partly because of the need to provide evidence for the expenditure. That request for evidence was distressing for Mrs X but not the fault of the Council, which has a duty to ensure it has robust information on which to allow the expenditure.
- However, it was clear from Mrs A’s first complaint that Mrs X was exceptionally distressed by the ongoing process of the financial assessment and the debate about her DRE. It would have been better practice for the Council to arrange to talk to Mrs X and Mrs A again in person and resolve the DRE question at an early stage rather than the correspondence which took several months.
- There were other faults on the part of the Council in the way it communicated with Mrs X and her family. The first complaint response relied on inaccurate information about the way the assessment had been conducted. The assessor did not ensure Mrs X received a copy of the support plan. Those were faults which caused Mrs X distress and her family frustration and inconvenience.
- Mrs A also complains about the Council’s refusal to allow her mother’s specialist shoes and footcare as a disability related expense, when the guidance specifically mentions footwear as a potential DRE. I have not seen evidence the Council has properly considered this aspect of the complaint other than to restate its view there was no evidence to support the claim.
- The 2020 annual review was not properly conducted. There was no provision made to ensure Mrs X had a family member with her during the telephone review, nor was it described as such.
- Within one month of my final decision the Council will apologise to Mrs X and her family for its poor communication with them;
- Within one month of my final decision, the Council will offer Mrs X £500 in recognition of the distress she was caused by the poor and delayed communication by the Council.
- Within one month of my final decision the Council will review its processes for handling DRE queries with a view to expediting the way in which decision are reached;
- Within one month of my final decision the Council will look again at Mrs X’s request for her specialist footwear to be included in her DRE.
- Within one month of my final decision the Council will expedite a proper review of Mrs X’s needs.
- There was fault on the part of the Council which caused injustice, which completion of the actions recommended at paragraphs 39 - 43 will remedy.
Investigator's decision on behalf of the Ombudsman