London Borough of Tower Hamlets (21 018 271)
The Ombudsman's final decision:
Summary: Miss Y complained about how the Council calculated what her friend Mrs X should pay towards her care. The Council was not at fault in how it decided what Mrs X should pay. The Council was, however, at fault for failing to ensure Mrs X received some of the support in her care plan. The Council will apologise and pay Mrs X £250 in recognition of the frustration this caused.
The complaint
- Miss Y complained about how the Council calculated what her friend, Mrs X, should pay towards her care. She said the Council did not properly consider what help she needed and that this meant Mrs X had to ask for external help, which the Council would not pay for. Mrs X said this caused her stress and frustration.
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)
- 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)
- If we are satisfied with an organisation’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:
- all the information Miss Y provided and discussed the complaint with her;
- the Council’s comments about the complaint and the supporting documents it provided; and
- the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
- Miss Y and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and guidance
Care and Support
- Councils have a legal responsibility to provide a care and support plan for an adult with eligible needs. The care and support plan should set out what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support the council will provide.
Charging for social care services
- Where a council is charging for care, it must carry out a financial assessment to decide what a person can afford to pay. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). This is set by national government and reviewed each year. The purpose of the MIG is to provide a person with sufficient funds to cover everyday items such as food, utility costs or insurance.
Disability Related Expenditure (DRE)
- Councils can take disability-related benefit into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs it is not meeting. The Care and Support Statutory Guidance sets out a list of examples of such expenditure. It says any reasonable additional costs directly related to a person's disability should be included. What counts as DRE should not be limited to what is necessary for care and support or what it set out in a person’s care and support plan. For example, above average heating costs should be considered.
The Council's approach to charging and DRE.
- The Council has guidance on what it allows as DRE. It gives examples of the types of things it would include as DRE. It says:
- where the disabled person needs a specific diet (e.g. due to allergies or medical condition) which results in costs above the average, it will normally award £30 per week;
- where a person can evidence they have to buy medicine as a result of their disability, the Council will award DRE, providing there is evidence why it is not available to the person on prescription; and
- it will allow DRE for transport costs related to a person’s disability where they are higher than those for an average person. If the Disabled person does not evidence the costs they have incurred, the Council will normally allow £9 per week. This is calculated as the cost of three round trips per week when a person has a London Councils Taxicard, which provides discounted taxi fares for people on disability benefits.
What happened
- This section sets out the key events in this case and is not intended to be a detailed chronology.
- Mrs X has a number of health conditions which mean she needs support at home. Miss Y told me Mrs X had been paying a family member or friend to do extra domestic work and prepare some meals for her for several years.
- In April 2020, the Council produced a care and support plan for Mrs X. The plan said Mrs X was able to prepare her own meals but if she became unable to cope, the Council would need to explore alternative options. The plan also noted Mrs X needed help with personal care, and carers would come in for 1.5 hours a week to do housework and laundry for her. The Council had identified a care provider (the Care Provider) which was supporting Mrs X. Miss Y has confirmed the carers would help Mrs X by cleaning her floors, bathroom and kitchen.
- In January 2021, the Council carried out a financial assessment and decided Mrs X had to pay £106.40 per week towards her care.
- Miss Y contacted the Council to say she felt the calculation was wrong. In mid-February she asked the Council to review the financial assessment and provided evidence of Mrs X’s expenditure. This included a receipt for a month’s worth of vitamins and other medical expenses totalling around £110.
- In mid-April 2021, the Council carried out the new financial assessment. It included DRE totalling £67.17 per week. This covered:
- £30.00 per week for special dietary needs;
- around £28 per week for medical treatments including vitamins. This was one quarter of the amount on the receipt Miss Y submitted; and
- £9.00 per week for transport costs.
- The Council decided Mrs X could pay £43.23 per week towards her care.
- In July 2021, the Council reviewed Mrs X’s care and support plan. It noted the Care Provider was still supporting her with housework, laundry and personal care. Mrs X also relied on a private informal arrangement to do extra laundry and to bring meals for her once or twice a week. Otherwise, she used takeaways.
- Miss Y disputed Mrs X’s DRE allowance with the Council repeatedly between June and September 2021. In summary, she said:
- Mrs X had higher food costs because of her health needs. She said Mrs X needed to buy more takeaways because she struggled to prepare food. She said it cost Mrs X £70 per week but the Council only allowed £30;
- Mrs X paid more for her medical treatments than the Council allowed;
- Mrs X needed to attend appointments at the local hospital. She used a taxi to get to them. She could not afford to do that and pay for her care; and
- she felt it should have included the cost of Mrs X’s privately arranged care as DRE.
- The Council said:
- it did not consider takeaways as DRE but noted it had awarded Mrs X the maximum amount it allowed for special dietary needs;
- it had allowed the maximum amount for transport. It suggested Mrs X apply for a London Councils Taxicard; and
- it would not include the cost of any privately arranged care services as DRE because they were not in Mrs X’s care and support plan.
- In 2022, Mrs X had repeated hospital stays. Before each discharge from hospital, the Council carried out an assessment of her needs and prepared a care and support plan.
- A plan from May 2022 noted the previous plan, from March 2022, should have included support from care workers with housework but that had not been commissioned by the Council. The May 2022 plan stated Mrs X needed 1.5 hours of domestic help per week. A later plan from October 2022 found Mrs X still needed that domestic support.
- I have reviewed records of the Care Provider’s visits in November 2022. There is no evidence the care workers carried out the 1.5 hours of domestic work that was in Mrs X’s October 2022 care and support plan. The care plan drawn up by the Care Provider notes she was due to receive the 1.5 hours from late December 2022 onwards.
Findings
DRE
- The purpose of DRE is to cover the necessary disability-related costs a person incurs because of their disability, over and above what a person without disabilities would pay. Miss Y disagrees with what the Council decided to include as DRE for Mrs X. It is not my role to substitute my judgement for that of the Council's officers. Instead, it is to examine the process that led to the Council’s decision and to see if it correctly applied guidance and legislation.
- Mrs X’s care plan notes she needs help keeping her clothes clean and maintaining her home. The Council set up a care package which includes support for 1.5 hours per week with laundry and housework. Mrs X also has a private arrangement where someone comes in to do her laundry and some housework. Mrs X chooses to pay for that support, which Miss Y feels the Council should include as DRE. However, the Council is satisfied the 1.5 hours per week meets Mrs X’s needs. That Mrs X chooses to pay for additional support, above her assessed needs, is her decision but it would not be DRE. If Mrs X needs more support then it is open to her to request a reassessment of her care needs from the Council.
- Similarly, Mrs X’s care plan states she needs help preparing meals and that she has a private informal arrangement where someone brings her food. Mrs X pays the people helping her. That is Mrs X’s choice. If she no longer wants to use that arrangement, she can ask the Council to reassess her needs and arrange support to prepare her meals.
- The Council properly considered Miss Y’s arguments that it should increase Mrs X’s DRE allowance to cover the takeaway costs. The Council explained it does not consider takeaway to be DRE but had nonetheless awarded Mrs X the policy maximum of £30 per week for food. There was no fault in the Council's decision making so I cannot question its outcome.
- Miss Y supplied the Council with evidence Mrs X spent around £110 a month on vitamins and other medical items. The Council allowed that entire amount as DRE. It was not at fault for not allowing more when there was no evidence to suggest Mrs X spent more.
- Mrs X sometimes uses a taxi to get to the local hospital. The Council considered Miss Y’s arguments and agreed to allow £9 per week, in line with its policy. The Council is entitled to allow less than the actual cost a person spends if it is reasonable to expect them to use a cheaper service. The Council explained to Miss Y that Mrs X could apply for London Councils Taxicard which would give her cheaper taxi trips. The Council was not at fault.
Domestic help
- Throughout 2022, Mrs X had several hospital admissions. The Council properly reviewed her need for care and support before each discharge. However, the Council's records show it thought she needed domestic help from the Care Provider. It appears that support was not put in place in a timely way on Mrs X’s discharge from hospital. The May 2022 plan notes the Council had not commissioned the support and a review of the care visits from November 2022 shows care workers did not carry out the 1.5 hours of housework. In addition, the Care Provider’s care plan notes the support began in late December 2022. On balance, I find the Council at fault for failing to meet Mrs X’s needs for help with housework. This caused Mrs X frustration and meant she had to rely on informal support to meet this need.
Agreed action
- Within one month of the date of my final decision, the Council will:
- apologise to Mrs X for the frustration she experienced due to its failure to put the domestic support in her care and support plans in place in 2022; and
- pay Mrs X £250 in recognition of the injustice this caused.
- The Council will provide us with evidence it has complied with the above actions.
Final decision
- I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice.
Investigator's decision on behalf of the Ombudsman