London Borough of Bromley (19 002 909)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 22 Nov 2019

The Ombudsman's final decision:

Summary: The Council took over a year to complete an appeal of financial contribution for adult care services. The Council should complete such appeals within six months, its delay is fault and caused worry, confusion, time and trouble to the complainant. The Council will apologise, pay £250 and review its process to see if it can improve it or if this delay was a one-off issue.

The complaint

  1. The complainant, who I will call Mrs D, says each year she appeals her son’s (Mr E’s) financial assessment to decide his contribution to care costs. It takes around a year to complete the stages of the appeal, Mr E’s contribution reduces a little at each appeal which suggests the Council is not getting it right. Then Mrs D starts fighting all over again for the next year. The amount Mr E must contribute leaves him below the poverty level (Joseph Rowntree Trust).
  2. The Council will not allow jaw massages as disability related expenditure, despite the NHS saying Mr E needs them. Mrs D says the NHS does not provide them so there is no other way than for Mr E to pay for them. Mr E has 24/7 care at home, so has increased gas and electricity charges because of his disability, but the Council has not made an allowance for this.
  3. Mrs D says the Council used to send an officer to their home to carry out the financial assessment, but now it’s all paper based. Mrs D says they get the demand for financial contribution and then spend the next 12 months contesting it. Mrs D finds the financial assessment process arduous and worries what will happen when she is not around to do it for Mr E. The lack of funds impacts on Mr E’s ability to have a social life. It is stressful to keep getting bills for arrears while appealing.

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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. 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)
  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 considered:
    • Information provided by Mrs D, including during a telephone conversation.
    • Information provided by the Council in response to my enquiries.
    • The Care Act 2014 and associated care and support statutory guidance.
    • The Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Department of Health’s Care and Support Statutory Guidance.
    • The Council’s ‘Contributions policy non-residential care services’
    • Responses from Mrs D and the Council to a draft of this statement.

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What I found

  1. Mr E lives in supported living accommodation, this is where support and supervision are available to assist him because he has autism and learning disabilities.

Financial assessment

  1. When the Council provides care support to someone it must assess what, if anything, that person can afford to pay towards that support. The Council must review the financial assessment at least once a year.
  2. The Council completes the first financial assessment by sending an officer to meet with the person using the service to complete a form about their income and expenditure. If a meeting is not possible the Council will ask the individual to complete and return the form and provide supporting evidence. The Council includes a standard allowance for disability related expenditure (explained in paragraph 26). If there is any change in financial circumstances during the year the individual must tell the Council so it can review the financial assessment. The Council then carries out an annual review where it adjusts income in line with any increases in state pension, welfare benefits and the allowance for basic living costs. Any other income included in the financial assessment will have inflationary increase.
  3. People using services can ask for a review of their charges if they consider the charge to be unfair or if they feel they cannot pay the charge.
  4. In February 2018 the Council completed its annual review of Mr E’s financial contribution towards his care; in March 2018 Mrs D asked for a review.
  5. The Council’s process has three levels of appeal:
    • Level one – operations manager. The policy says the Council will deal with the appeal within six weeks from the date it receives the appeal.
    • Level two – appeals panel. The Council will hold the appeal at the next available appeals panel after it receives the appeal. There is no timescale in the policy but the Council says it is usually within six to eight weeks.
    • Level three – appeals sub-committee. There is no timescale in the policy but the Council says it aims to hold the appeal within six to eight weeks.
  6. This means the Council should complete the whole appeals process within a maximum of 22 weeks from the date the Council receives the appeal. The Council did not conclude Mrs D’s appeal until April 2019, so took closer to 61 weeks. There will be valid reasons to extend the timescales, such as to allow time for Mrs D to provide evidence, as did happen in this case. However, the whole process took too long and wasn’t concluded until after the next annual review. The delay was fault by the Council. This involved a lot of time for Mrs D. It caused uncertainty over what the final amount would be, and that made it difficult for Mrs D to budget Mr E’s money.
  7. Mrs D pursues the appeal for Mr E and worries about those people who may not be able to pursue an appeal, and who may not have somebody to do it for them. Anyone who does not have capacity to manage their own finances will have a deputy to do it for them. Therefore, there will be somebody who can pursue an appeal on their behalf. The Council says it signposts people to voluntary organisations who can assist those who cannot make an appeal themselves.
  8. Mrs D comments on the amount of evidence you must provide, and how for the 2018 review you are providing evidence of expenditure from 2017. The Council has a duty to properly manage public monies and must ask for evidence to properly complete the appeal of the financial review. The Council’s financial assessment form guidance notes explains it needs the person using the service to provide evidence about any expenses they want it to consider. It asks for recent copies of bills, invoices or similar documents. I do not find the Council’s process is unreasonably demanding in terms of the evidence the person using services, or their representative, must provide. Because the matter dragged on until 2019 it meant Mrs D was providing evidence from almost two years prior. I understand Mrs D’s concerns; as explained in paragraph 14 the appeal took too long to decide.
  9. Because the appeal took over a year it meant Mrs D received letters in March and April 2019 for both the 2018/2019 financial contribution and the 2019/2020 contribution. Mrs D was managing appeals for both years at the same time. This caused confusion as Mrs D received various letters in close succession relating to different periods and providing different amounts. This would not have happened but for the Council’s delay.
  10. Mrs D feels that because the Council reduced the amount of Mr E’s contribution at each stage of the appeal, that is evidence the Council is not getting it right in the first place. I understand why Mrs D feels that way, but one of the reasons Mr E’s contributions reduced at each stage was because of further evidence Mrs D provided. However, the Council accepts it should have considered transport costs at the first stage of the appeal rather than the third stage, as Mrs D had provided the relevant evidence. The Council could have included an allowance for that sooner, but that was not the only issue being considered so there was still a need for the further appeals. The Council’s failure to consider Mrs D’s evidence, and denial it had it, caused frustration for Mrs D.
  11. Mrs D queries why she must go through the process every year, as Mr E’s conditions will not improve. It is a requirement for the Council to complete a review of care and support needs, and of financial contribution, at least once a year.
  12. Mrs D comments the Council’s financial assessment leaves Mr E below the poverty level. The Council must ensure those using services are left with a level of income to cover their living costs, this is the Minimum Income Guarantee set by the government. The Minimum Income Guarantee for Mr E is £151.45 per week, and the Council leaves Mr E with this amount. Therefore, the Council is acting in accordance with the law and government guidance.
  13. Mrs D found it stressful the Council issued bills while the appeal was ongoing. The Council says it continues to send monthly statements during the appeals process, so clients are kept informed of the balance on their account and do not receive a large bill once the appeals process is exhausted. The Ombudsman does not criticise the Council for continuing to send invoices. The Council should not start any recovery action for non-payment while the amount is in dispute, but it is not fault of the Council to continue to send invoices of the amount that is currently outstanding. Any changes made because of the appeal should result in the Council sending an amended invoice and refunding any overpayment.
  14. Although it is not fault for the Council to send invoices, the invoices it sent to Mrs D were confusing. They contain two different amounts for the same date with no explanation, and on one date two amounts the same. It appears the Council is potentially charging Mr E twice; Mrs D still does not have clarity on this issue.
  15. Mrs D feels the Council’s process is not fit for purpose as it is all paper based, and the onus is on people using the service to appeal to get an individual assessment. The Ombudsman does not find councils at fault for operating a financial assessment where they apply a standard figure for DRE and offer a review if individuals feel their DRE is higher than the standard figure. There is nothing in law or guidance that says the Council cannot do this. While this might feel onerous for those individuals who seek review, we recognise it would be a huge resource for the Council to send an officer to each person using services to complete an individual assessment every year. Some people will benefit from the standard DRE figure the Council applies and the system will be less onerous for them, and some people will have higher DRE for which they will have to evidence at review.
  16. The Council says it offers a Visiting Officer service where a Visiting Officer can meet with the person receiving services and/or their representative to explain the financial assessment process, complete the financial assessment form and verify the supporting evidence. Therefore, the Council does still offer the support of a member of staff to help assist with the process if requested. Mrs D says the Council never offered this to her despite her appealing every year. I have no evidence the Council offered this service, or that Mrs D requested it. The Council might want to consider including this service in its literature or on its website to make people aware they can request this assistance.
  17. The Council has correctly completed Mr E’s financial assessment regarding the figures it asks him to contribute. It has applied the correct law and guidance to establish this. The Council has failed to act under its policy and its own service standards as it delayed the appeal process and failed to consider transport costs at the first stage. This led to time and trouble for Mrs D and uncertainty for a longer period over what Mr E’s correct contribution is.

Disability related expenditure

  1. Disability related expenditure (DRE) is the additional expense a person incurs specifically because they are disabled or have health problems. The Council must take eligible expenditure into account in financial assessments to make sure people who pay towards their care and support have enough money to live on. The Council must leave you with enough money to pay for necessary disability related expenditure to meet any needs which it is not meeting.
  2. Mrs D says medical consultants have advised Mr E that he needs massage as the only treatment available to relieve pain in his jaw from a jaw condition. The NHS will not provide the massage, so Mr E pays £50 a fortnight for the treatment. Mrs D says this is an expense directly related to a health problem and so the Council should give a DRE allowance in the financial assessment for this.
  3. The Council refers to Section 22 of the Care Act 2014 which says that councils may not meet needs that the NHS is required to provide unless the service is of a nature that the council could be expected to provide. The Council says a jaw massage is not a service which the Council could be expected to provide. The Council says the jaw massage is a medical need so the cost of appropriate treatment should be met by the NHS.
  4. The statutory guidance says “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”.
  5. Mrs D says Mr E reacts differently to the treatment required for his jaw condition, because of his disability. Mr E displays challenging behaviour and has anxiety and confusion. The jaw massages would help him cope with his symptoms, which are caused because of his disability.
  6. However, Mrs D also says the jaw condition is a medical issue and the NHS have recommended jaw massages as a treatment. Mrs D has not appealed the NHS decision that it will not supply jaw massage. Mr E should ask his GP to make an Individual Funding Request to the local Clinical Commissioning Group. An individual funding request is an application to fund healthcare which falls outside the range of services and treatments which are routinely commissioned.
  7. If, after exhausting the NHS processes it still will not provide the treatment, Mrs D should ask the Council to reconsider whether the cost of jaw massage is necessary disability related expenditure for which the Council should make an allowance in the financial assessment. This is not asking the Council to provide a health service, but to allow Mr E to keep enough disability related benefit to pay for it. There is nothing to prevent councils providing ancillary services related to health needs. Although this process is time consuming for Mrs D, it is the appropriate route to pursue. I cannot say the Council is at fault for not providing the jaw massage as DRE at this stage, it is appropriate for the Council to first ask Mrs D to exhaust all avenues with the NHS as it appears to be directly related to a health need.
  8. Mrs D says Mr E uses more gas and electricity because of his disability; he has carers 24 hours a day who are also using the facilities. The Council says it uses the guide provided by the National Association of Financial Assessment Officers to calculate any allowance for gas and electricity. This shows the average amount for a single person living in a flat or terraced property is £1206.07 per year. Mrs D provided evidence of Mr E’s gas and electricity costs which showed they were £973 in 2018 and estimated to be £944.82 in 2019. As the amounts were less than the average amount the Council did not give any DRE allowance, as there is no evidence Mr E has higher gas and electric costs because of his disability.

Recommended action

  1. To recognise the impact of its fault, the Council will:
      1. Apologise to Mrs D for the delay completing the financial assessment appeals process, and pay £250 to recognise her distress, time and trouble.
      2. Review the appeals process for financial assessments and look at how long appeals are taking to decide. Assess what went wrong in this case, why did it take a year, identify and complete any improvements. Consider whether there are ways the financial assessment appeal process could be streamlined and if so complete any identified improvements.
      3. Provide an explanation to Mrs D on the following invoices to assure Mr E has not been charged twice. Or send an amended invoice if the Council has made an error:
        1. Invoice for the period 30 July 2018 to 26 August 2018. For 5 August, 12 August, 19 August and 26 August shows payments due of £114.07 and £107.19 for the same day.
        2. Invoice for the period 11 March 2019 to 7 April 2019. For 17 March, 24 March and 31 March shows amounts due of £114.07 and 69.88 for the same day.
        3. Invoice for the period 8 April 2019 to 5 May 2019 shows £74.31 owed twice for 14 April.
        4. Invoice for the period 22 October 2018 to 18 November 2018. For 28 October, 4 November, 11 November and 18 November shows amounts due of £107.19 and £88.04 for the same day.
        5. Invoice for the period 27 August 2018 to 23 September 2018. For 2 September shows £114.07 and £107.19.
  2. The Council should complete the apology, payment and explanation of invoices within one month of the Ombudsman’s final decision, and the review of its process within three months. The Council should evidence to the Ombudsman its compliance with these actions.

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Final decision

  1. I have completed my investigation on the basis the agreed action is sufficient to acknowledge the fault and impact in this case.

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Investigator's decision on behalf of the Ombudsman

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