Summary: The Council failed to provide Mr X with the support he needed to complete assessment forms for disability related expenditure and then communicated poorly about this with Mr X’s representative. The Council has apologised for the faults and agreed to consider backdating any allowance for disability related expenditure it may grant. These are appropriate actions to remedy any injustice caused to Mr X. It has also agreed to service improvements to minimise a reoccurrence of the fault.

The complaint

1. A charity which is representing Mr X complains the Council:
• did not provide the support Mr X needed to complete his disability related expenditure (DRE) assessment forms; and
• failed on numerous occasions to respond to queries and complaints about this matter and the contributions he made to his care fees.
2. The charity says this caused Mr X unnecessary distress.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)
5. Under our information sharing agreement, we will share this decision with the Care Quality Commission.

Back to top

How I considered this complaint

6. I considered the charity case worker’s comments on the complaint.
7. I made enquiries of the Council and considered the information it provided.
8. I wrote to the charity case worker and the Council with my draft decision and considered the comments I received before I made my final decision.

Back to top

What I found

Paying for care

9. Where adults receive care and support, they may have to contribute towards the costs, depending on financial eligibility criteria.
10. Where a council has decided to charge it must carry out a financial assessment of what the person can afford to pay (Care and Support Statutory Guidance, section 8.16)
11. A council must regularly reassess a person’s ability to meet the cost of any charges to take account of any changes to their resources. This is likely to be on an annual basis but may vary according to individual circumstances.
12. Where a council takes disability-related benefit into account when calculating how much a person should contribute towards the cost of their care, it should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs the council is not meeting. DREs are costs that arise from a disability or long-term health condition.

What happened

13. Mr X is severely disabled and cannot write or communicate verbally. He lives alone and needs full-time care from care workers. He receives a number of benefits, including a disability-related benefit.
14. In the past, a Council support worker helped Mr X complete his annual financial assessment forms. The last time this occurred, in February 2020, the Council calculated Mr X could afford to contribute around £122 a week towards the costs of his care package. Mr X was also assessed as having DRE and received around £8 a week towards them.
15. In May 2020, a new DRE assessment was requested for Mr X. The Council posted the DRE form to him later that month. When it did not receive a response, the Council sent another form in July and then in August.
16. In September, October and November, the Council sent Mr X monthly invoices for the amount he owed (around £490 a month) in contributions towards his care. Mr X did not pay them and contacted a charity he uses who assigned him a debt case worker. By this stage Mr X owed over £10,000 in care fees.
17. On 12 November, the debt case worker sent the Council written confirmation that Mr X consented for them to act on his behalf. The case worker asked the Council for more information about the amount it said Mr X owed.
18. The Council did not respond so the case worker contacted it twice in November, sending another copy of the consent form. Hearing nothing, the case worker contacted Mr X’s MP in January 2021.
19. Following contact from the MP, a Council officer (Officer A) contacted the case worker on 19 February 2021 and said their query had been passed to a member of staff in the Financial Assessment Team. The Council explained the case worker had used an incorrect Council email address which is why the Council had not responded previously.
20. A member of the Council’s complaints team also contacted the case worker and asked them to complete a consent form. On the form the Council called the client’s representative an ‘advocate’. The case worker responded and stated they were a debt case worker and not an advocate with a law qualification and so to complete the form would be misleading. The case worker said they felt the Council was putting up further barriers to prevent them from resolving Mr X’s problems.
21. The case worker heard nothing further and contacted the Council twice in April. After receiving no response, contacted Mr X’s MP. The case worker explained they had sent in a consent form signed by Mr X but the Council continued to be obstructive. The Council’s complaints team responded and refused to take any further action until the case worker had completed the Council’s consent form.
22. Officer A telephoned the case worker on 21 April to discuss Mr X’s case. The case worker explained Mr X was severely disabled and could not communicate verbally or in writing and the Council usually appointed a support worker to help him complete forms. The case worker requested the Council send a support worker and also write off all debt Mr X owed. Officer A said they would speak to their manager and get back with an update.
23. The case worker heard nothing further and on 6 and 14 May, attempted with no success to contact Officer A. Officer A emailed on 14 May to say they would provide an update.
24. Again, the case worker heard nothing. On 17 June they contacted Officer A who said once more that they would follow the matter up.
25. Hearing nothing further, the case worker made a formal complaint to the Council on 25 June and again having heard nothing, complained in August to the Ombudsman.
26. In response to my enquiries, the Council said there had been an error of miscommunication between the two different departments involved in Mr X’s case, with each believing the other was dealing with it. As a result, the Council said it did not provide the support Mr X needed to complete his DRE assessment form.
27. The Council apologised for its errors and said if it grants DREs following Mr X’s assessment, it will review the date these should apply from in light of when he first requested them.

My findings

Consent for the case worker to act as Mr X’s representative

28. The case worker twice sent the Council a consent form signed by Mr X. But because she used the incorrect email address, the Council did not receive it. Consequently, the Council complaint team later asked the case worker to sign its own consent form. Believing the Council already had consent, and also because she was not an advocate, Ms Z would not do so. This led to the Council’s refusal to accept her as a representative. The issue of consent, therefore, arose from a series of unintentional misunderstandings and I do not find the Council at fault.
29. I have also considered the wording of the Council’s consent form. This refers to an ‘advocate’. This is often used as a general term for a representative and there is nothing to suggest this must be a legal representative.

Complaints handling

30. Ms Z used an incorrect email address between November 2020 and February 2021 which meant the Council did not receive any communications from her. Therefore, the Council was not at fault in this period for not responding.
31. However, the Council failed repeatedly to provide a substantive response to communications sent by the case worker from February to June 2021. This is fault.
32. However, this did not cause Mr X an injustice. This is because he had a case worker acting on his behalf who bore the time and trouble required to chase the matter. And Mr X did not pay anything towards the costs of his care during this, or previous, periods. Therefore, he did not experience any financial injustice.

Mr X’s financial assessment

33. During my investigation, the Council accepted it had acted with fault when it failed to send a support worker to help Mr X complete the DRE assessment forms. It has apologised and said it will consider backdating any DREs it may grant to Mr X from when he first requested them. These are satisfactory to remedy any injustice caused by the Council’s fault.

Back to top

Agreed actions

34. Within three months of the date of the final decision the Council has agreed to:
• review its processes to ensure the Social Care Direct Team and Adult Social Care Team are clear about areas of responsibility relating to the appointment of support workers to help clients requiring assistance; and
• remind staff dealing with complaints of the timescales for responding to complaints.

Back to top

Final decision

35. There was fault in the Council’s actions. It has already remedied the injustice this caused Mr X and has agreed to my recommendations to minimise a reoccurrence of the same fault. Therefore, I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman