London Borough of Tower Hamlets (19 008 359)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 18 Mar 2020

The Ombudsman's final decision:

Summary: The Council is at fault as it did not give adequate consideration to Ms X’s appeal of January 2018 for disability related expenditure. The fault by the Council caused uncertainty and avoidable time and trouble to Ms X. The Council has agreed to remedy this injustice by apologising to Ms X and making a payment of £100 to Ms X which is in addition to a payment offered of £100 already offered by the Council.

The complaint

  1. Mr Y complains on behalf of Ms X. He complains that the Council delayed in assessing Ms X’s financial contribution to her care charges and delayed in dealing with her appeal against the care charges. As a result, Ms X has incurred significant arrears which she considers would have been lower and more manageable if the Council had not delayed in assessing her contribution. Ms X considers the Council’s offer to reduce her debt by £100 is insufficient in the circumstances

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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. I have:
    • Considered the complaint and the information provided by Mr Y;
    • Made enquiries of the Council and considered the information provided;
    • Invited Mr Y and the Council to comment on the draft decision.

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What I found

  1. Councils can make charges for care and support services they provide or arrange. 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%. This is known as the minimum income guarantee (MIG). 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.

What happened

  1. Ms X receives direct payments for care at home. She started to receive the payments in 2017 when the Council started charging for homecare. When first applying in 2017 Ms X completed a financial declaration form for the Council to assess her contribution to her care package. The form asks applicants to state their expenditure due to disability. Ms X said she used a taxi card. She did not give details of any other disability related expenditure (DRE). The Council carried out the financial assessment and notified Ms X that she was required to contribute £66.26 per week towards her care package.
  2. Ms X sent a letter to the Council in November 2017 appealing against the level of the contribution she was required to make. She listed a number of items she wished to be taken into account including additional expenditure on diabetic food. In December 2017 the Council carried out a reassessment but did not change the contribution Ms X was required to make.
  3. Ms X appealed again in late January 2018. Ms X listed the DREs she wished to claim and her expenditure for each one. These included a special diet for Ms X’s diabetes, supplements, special footwear and a special mattress. They also included travel expenses. The Council reassessed Ms X’s DREs in March 2018, allowed an additional £5 and reduced her contribution to £61.26 per week which it backdated to October 2017. The financial assessment or letter to Ms X does not detail which DREs the Council allowed. However, I understand the Council did not grant DREs for travel expenses.
  4. Ms X made a further appeal in March 2018. In May 2018, the Council carried out a reassessment and awarded DREs of £28.12 per week for Ms X’s shoes, dietary needs and mattress. Ms X’s contribution was £38.14 per week.
  5. In May 2018 Mr Y contacted the Council on her behalf to query why the Council had not agreed DRE for travel and dietary supplements. In June 2018 Mr Y provided additional evidence of Ms X’s expenditure on dietary supplements. In August 2018 the Council reassessed Ms X’s DREs and allowed a further £10 for her dietary needs. This reduced Ms X’s contribution to £28.14 per week.
  6. The Council suspended its invoices each time it reassessed Ms X’s DREs. Ms X did not pay a contribution during this time so she accrued arrears of over £1400. Ms X appealed and asked the Council to waive the arrears.
  7. The Council’s appeal panel considered Ms X’s appeal. The appeal panel decided not to waive the arrears. The Council notified Ms X of this decision and advised her to contact its debt recovery team to arrange a repayment plan. The Council has backdated Ms X’s contribution of £28.14 to October 2017.
  8. Ms X made a complaint to the Council regarding the time taken to complete the reassessments. The Council acknowledged the process had taken a long time and offered a payment of £100 to be deducted from her arrears to acknowledge this. Ms X considers the payment in insufficient to acknowledge the distress and accrual of arrears.

My assessment

  1. Ms X’s appeal of January 2018 set out the DREs she was claiming including her for her diet, footwear and mattress. These are the same DREs as the Council awarded in August 2018. Ms X did not provide any further information on the DREs in her subsequent appeals so it is not clear why the Council did not agree the DREs for diet, footwear and mattress in March 2018 when it considered the appeal. The Council requested more information on her dietary supplements in May 2018 but it could have requested this information in March 2018 if it did not have sufficient information to decide what level of allowance to grant. So, on balance, I consider the Council did not give adequate consideration to Ms X’s appeal and request for DRE’s of January 2018. This is fault which caused an unnecessary delay of five months in reaching a decision on the DREs.
  2. The Council’s delay in reaching a proper decision on Ms X’s DREs has caused uncertainty to her as she did not know what her contribution would be for longer than necessary. I accept Ms X would have challenged the Council’s decision not to pay DRE for her travel expenses. But the delay put Ms X to avoidable time and trouble as she had to repeatedly challenge the Council’s decisions on her DREs for diet, shoes and mattress. This could have been avoided if the Council had given adequate consideration to Ms X’s appeal of January 2018. The Council has offered a payment of £100 to acknowledge the reassessments took too long. However, I consider an additional payment of £100 is warranted to acknowledge the uncertainty and avoidable time and trouble caused. The total payment of £200 is in accordance with our guidance on remedies.
  3. Ms X wants the Council to waive her arrears as she considers her arrears would have been lower and more manageable if the delay had not occurred. I do not consider it is appropriate or proportionate to recommend the Council waives the arrears. Ms X would have always had to contribute to her care regardless of the delay so it cannot be right or proportionate for the Council to waive the arrears. The Council has offered a repayment plan to Ms X to allow her to repay the arrears in instalments.

Agreed action

  1. That the Council:
  1. Sends a written apology to Ms X for the uncertainty and avoidable time and trouble caused by its failure to properly consider Ms X's appeal of January 2018 which delayed its decision on her DREs.
  2. Makes an additional payment of £100 to acknowledge the uncertainty and avoidable time and trouble caused to her. This together with the payment of £100 already offered by the Council can be deducted from Ms X’s arrears to reduce them.
  3. Reviews its procedures for considering requests for DREs to ensure officers give adequate consideration to requests, including promptly seeking any additional information required, to avoid the delays experienced by Ms X. The Council should also ensure it keeps proper records of its decisions on DREs and reasons for those decisions. The Council should inform the Ombudsman of the action taken to improve its practice in this area.
  1. The Council should take the action recommended at a) and b) within one month of my final decision. It should take the action recommended at c) within three months of my final decision.

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Final decision

  1. The Council is at fault as it did not give adequate consideration to Ms X’s appeal of January 2018 for disability related expenditure. The fault by the Council caused uncertainty and avoidable time and trouble to Ms X. The Council has agreed to remedy the injustice to Ms X so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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