Decision : Upheld
Decision date : 24 Nov 2020
The Ombudsman's final decision:
Summary: The Council acknowledged officers made inappropriate comments about Mr X’s mental health before the complaint came to the Ombudsman, but it failed to offer an appropriate remedy. It has agreed to make a payment to reflect the distress caused. There is no fault by the Council in the way it considered Mr X’s request that his grandmother’s telephone and internet services be considered as disability related expenditure.
- Mr X complains the Council failed to properly consider his grandmother, Mrs Y’s request for disability related expenditure.
- He also says whilst dealing with the Council about the above matter, he discovered officers had made inappropriate comments about his mental health which caused him distress.
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. 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)
- 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 have:
- considered the complaint and discussed it with Mr X;
- considered the correspondence between Mr X and the Council, including the Council’s response to the complaint;
- made enquiries of the Council and considered the responses;
- taken account of relevant legislation;
- offered Mr X and the Council an opportunity to comment on a draft on this document, and considered the comments made.
What I found
Care and support statutory guidance
- This document sets out Guidance on how councils meet the terms of the Care Act 2014. It says councils can charge for care and support, except where they are required to provide it free of charge, (set out in Section 14 of the Act).
- The Guidance says a person should not have to pay for care and support out of their capital if they have less than £14,250. It also says councils should disregard any DLA mobility component a person receives when assessing their income.
- There are certain items of expenditure that can be deducted from a person’s income before the council decide whether a person can afford to contribute to your social care costs called Disability Related Expenditure, or DRE.Councils must take DRE into account when assessing a person’s finances. The financial assessment should set out exactly what the Council considers to be DRE.
- A DRE is defined by the Department of Health as “items where the user has little or no choice other than to incur the expenditure in order to maintain independence or quality of life”.
- The Guidance says DRE should be considered when:
- The extra cost is needed to meet a person’s specific needs due to a medical condition or disability, as identified in the Council’s care and support assessment;
- The cost is reasonable and can be verified; and
- It is not reasonable for lower cost or free alternative item or service to be used. If a lower cost alternative could have been used the expense considered will be capped at the lower cost of the item.
- Mrs Y is in her seventies. She lives at home with Mr X.
- Mrs Y has severe respiratory disease and requires oxygen at home. She receives a direct payment from the Council to purchase care and support services. Mrs Y makes a financial contribution towards her care.
- In May 2020, Mr X contacted the Council to ask it to consider the cost of telephone and internet services as disability related expenditure (DRE) He says Mrs Y’s landline is essential for the use of a telecare alarm system that was installed in November 2019. He says the internet also allows Mrs Y to manage online banking and shopping.
- Mr X says it is possible to have the telecare system without a landline telephone, but it would incur an additional weekly charge of £3.07 per week which could then be considered as DRE.
- The Council responded to Mr X on 1 June 2019 by email. It refused the request, saying, “There is no evidence that the land line / mobile phone or internet are specifically required due to [Mrs Y’s] disability, and these appear to be everyday usage, the same as general population”. Attached to the email were other emails which had been exchanged between officers about this and previous DRE requests. Whilst communicating with each other officers made personal comments about Mr X and his mental health. Mr X says this caused him great distress. He believed officers’ comments to be discriminatory, and that it had unduly influenced the decision about Mrs Y’s DRE request. He also said officers’ comments amounted to a breach of the Data Protection Act.
- Mr X submitted a formal complaint to the Council saying he was deeply upset by the comments and that it had exacerbated his mental illness. The Council acknowledged the complaint and sent Mr X a ‘complaints resolution plan’ on 16 June 2020.
- The Council provided Mr X with a written response to his complaint on 6 July 2020. I have seen a copy of the letter. It first addressed the issue of the DRE request, the author, a manager, explained the Council’s duty under the Equality Act 2010 to not directly discriminate against a person “...because of a protected characteristic by treating them less favourably than it would treat others. A person’s mental health is considered a protected characteristic”. The author said the DRE request had been reviewed by a manager in the Council’s financial assessment team and that the officer concluded the correct process had been followed and that the decision was correct. The author said there was no evidence to suggest the request had been treated less favourably because of the comments made about Mr X’s mental health.
- The author went onto say that the comments made by officers had “…no place in the Council’s consideration of matters linked to your grandmother”, that the comments were unprofessional and unwarranted, and that “..officers had failed to comply with their duties in processing your personal data resulting in a breach of data protection legislation”. The author apologised to Mr X saying she “unreservedly and unequivocally apologise on behalf of the Council for the actions of officers in making unprofessional and unwarranted comments” and said the matter would be dealt with accordingly by a senior officer. She said the Council did not consider the matter needed reporting to the Information Commissioner but provided Mr X with the contact details for the Commissioner’s officer should he wish to contact it.
- The author refused Mr X’s request for financial compensation for the data breach saying, there had been no monetary loss of his part.
- In its response to my enquires the Council said a community alarm was installed at Mrs Y’s request on 30 November 2019. It was a piece of equipment Mrs Y wanted at the time, rather than it being provided to meet an assessed need. The installation form held by the community alarm company identified that a landline was already in place to enable the alarm to be connected. If Mrs Y had not had a landline she would have been offered the option of a ‘Caresse Unit’, which would have incurred an additional weekly cost in addition to the cost of the alarm system. Documents I have seen dated May 2020 & June 2020 acknowledge that telecare alarm is in use and is now considered a need.
- The Council accepted it had not offered Mr X an appropriate remedy for the distress caused by inappropriate comments made by officers. It agreed to the Ombudsman’s suggestion, of a payment of £300 to acknowledge the significant distress caused.
- It is not for the Ombudsman to say whether the Council should or should not include the items outlined in paragraph 13 as DRE. Rather, we look at whether there is fault by a council in the way it has made a decision. As part of this consideration, I have considered whether the council’s decision-making process was in keeping with relevant guidance and legislation.
- The Council has some discretion about what it considers as DRE. The Ombudsman would generally expect the Council to consider using its discretion to disregard expenditure, where the person has provided clear evidence that it has a direct link to their disability.
- At the time the telecare system was installed Mrs Y’s support plan did not identify a need for such equipment. The system was installed at her request. Mrs Y had telephone and internet services prior to the installation of the alarm. The telecare service is now considered to be a need, and the Council has allowed the cost of the alarm to be considered as DRE, but it concluded the landline had been in place before the alarm system was installed and should not be included as DRE. The Council considered the request in accordance with the Guidance. I cannot find fault in that way it reached its decision.
- However, the conduct of officers during the consideration of the DRE request understandably led Mr X to believe that the decision to refuse the request was based on discriminatory views of his mental health. Whilst the comments were inexcusable it did not influence the decision about the DRE.
- We expect Councils to treat people fairly and with respect, and not to expose the public to unnecessary distress as a result of their actions. The Council accepts that on this occasion some officers failed to act properly. It offered Mr X a sincere apology and explained the action it was taking to address the matter before the complaint came to the Ombudsman.
- Initially the Council refused to offer Mr X a monetary payment, saying he had not incurred a monetary loss. Whilst the injustice caused to Mr X could not be remedied by a payment, the Council should have offered Mr X a symbolic amount to acknowledge the impact of fault. In this case the Council agreed to the Ombudsman’s suggestion that such a payment be made.
- The Councill has agreed to:
- pay Mr X £300 to acknowledge the significant distress he experienced. The payment should be made within four weeks of the final decision.
- I am satisfied the Council has taken appropriate action to address staff conduct and the data breach.
- There is no fault by the Council in the way it considered Mr X’s request that his grandmother’s telephone and internet services be considered as disability related expenditure.
- The Council acknowledged officers made inappropriate comments about Mr X’s mental health before the complaint came to the Ombudsman. It has agreed to make a payment to reflect the distress caused
- It is on this basis; the complaint will be closed.
Investigator's decision on behalf of the Ombudsman