London Borough of Islington (18 004 176)

Category : Adult care services > Other

Decision : Upheld

Decision date : 19 Dec 2018

The Ombudsman's final decision:

Summary: Mr X complained the Council stopped paying him direct payments to pay for a second room for a carer, and then delayed reconsidering this decision when he asked it to. The Council was at fault as it did not properly consider its decision to stop paying for the second room and it did not identify how else it would discharge its duty to meet Mr X’s eligible night time needs. It then took too long to reconsider its decision. Mr X paid rent himself for a second room to enable a carer to stay overnight. The Council has agreed to refund
Mr X £2,280 for the costs of the second room for five and a half months, and to apologise.

The complaint

  1. Mr X complained the Council stopped paying him direct payments to pay rent for a second room in his home, despite a sleep-in personal assistant being necessary to meet his eligible care needs. He said the Council then delayed reconsidering its decision between October 2017 and May 2018. This meant Mr X had to pay the extra rent himself. He feels it is unfair that he should have to pay for this, just because he is disabled.

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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. For this investigation, I:
    • considered the information Mr X provided and discussed the complaint with him;
    • made enquiries of the Council and considered the comments and documents it provided;
    • looked at the relevant law and guidance, including the Care Act 2014 and its associated statutory guidance;
    • considered the Ombudsman's guidance on remedies; and
    • wrote to Mr X and the Council with my draft decision and considered their comments.

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What I found

  1. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult's needs and how they impact on their wellbeing and the results they want to achieve.
  2. Councils must assess how a person’s needs affect their ability to achieve certain outcomes (such as managing toilet needs and being able to make use of one’s home safely). A person has eligible needs if:
    • they cannot achieve two or more of the outcomes;
    • this results from a physical mental impairment or illness; and
    • not meeting the outcomes is likely to cause a significant impact on their wellbeing.
  3. Where a council has determined that a person has any eligible needs, it must meet these needs. Councils set out how they will meet eligible needs in a care and support plan. The plan includes a personal budget which is the money the council has worked out it will cost to arrange the necessary care and support for the person.
  4. Councils can give personal budgets via a direct payment, allowing the person to commission their own care and support to meet their eligible needs. Direct payments aim to provide more freedom and flexibility, allowing individuals to arrange support that works best for them. Because a person’s needs are specific to them, there are many ways in which their needs can be met. The intention behind the legislation is to encourage this diversity. The purpose of the care and support planning process is to agree how a person’s needs should be met, and therefore how the local authority will discharge its duty to do so.
  5. The Council’s direct payments policy and procedures say the Council encourages creative and innovative use of personal budgets allowing service-users to commission their support in a way that suits them individually. It says “less conventional” choices will need approval from social services but should be considered in line with the person’s eligible needs and outcomes stated on their support plan. The policy says personal budgets cannot be used for “Anything that is usually funded by other sources of income like… rent”.

What happened

  1. Mr X has a physical disability and needs a personal assistant (PA) to stay overnight to help with his night care needs. During the night, Mr X needs help to use the toilet and he could not exit the building independently in an emergency. Mr X therefore needs to rent accommodation that has an extra bedroom for his carer.
  2. In 2014 Mr X moved into the Council’s area from another council area. The Council assessed Mr X’s needs in July 2014. It recorded that Mr X had various eligible needs, for example help with activities of daily living (including using the toilet) and support to stay safe during the night. It noted having someone present all night was an identified need for Mr X. An occupational therapy assessment confirmed he needed 24-hour support and a PA available at night in case of emergencies such as fire or asthma attack. The Council recorded it would need to carefully consider whether it had an obligation or duty to fund overnight PA support and the cost of the PA’s room, because of Mr X’s night-time care needs.
  3. The Council decided Mr X needed a PA for 13 hours a day and 9 hours a night for a sleepover. The Council agreed Mr X could use direct payments to pay for rent for his PA’s bedroom. The officer noted the PA needed accommodation and recorded the Council’s legal advice was that it should fund this. I asked the Council to provide me with a copy of this legal advice but it told me the legal advice was about a separate matter.
  4. In April 2017 the Council’s Direct Payments Finance Team told the social worker direct payments could not be used for rent. The Council officers discussed this was not an acceptable use of direct payments and rent costs should go through housing benefits. The social worker agreed to review this with Mr X. The Council told Mr X he could no longer pay for the spare bedroom using direct payments and he would need to use housing benefit. Mr X raised concerns but applied for housing benefit, and the Council removed the PA’s accommodation from Mr X’s personal budget.
  5. The Council could not provide me with evidence of how its social care team considered this decision given its earlier payment of this. It did not seek new legal advice despite previously telling Mr X he could use direct payments in this way. It stopped paying based on the advice from the finance team. The Council told me it had exercised discretion in November 2014 to fund the second room and it stressed it had no statutory duty to fund Mr X’s PA’s rent.
  6. An internal email from May 2017 suggests Mr X told the social worker that he could fund the second room, but that this could only be for a short period of time. This was while he was awaiting a decision on his housing benefit application.
  7. In June 2017 the Council agreed to pay Mr X housing benefit from the end of April. The Council at first agreed housing benefit for one room, but later changed this decision and backdated payment for two rooms from April 2017.
  8. Mr X told the Council if his income went over the threshold for housing benefit in the future he would pay the cost of rent for his room. He said, however, he would not be prepared to pay rent for a PA’s room. He explained he felt it was unfair he should have to pay double rent just because he was disabled.
  9. Mr X asked the Council in August to confirm if he would need to pay his PAs’ room’s rent if his income went over the housing benefits threshold. The Council advised this was correct. Mr X told the Council he was concerned if he got a job he would not get housing benefit. He asked what other people usually did in this situation. The Council replied saying if Mr X’s circumstances changed he should contact social care at the time. Mr X asked the Council again at the end of September what would usually happen in situations like this.
  10. In October, the Council stopped Mr X’s housing benefit, effective from the end of August. This was because he had more funds, putting him above the threshold. Mr X asked the Council again what would usually happen in these circumstances.
  11. A Council officer recorded on their case notes that Mr X had asked the same question several times. The Council wrote to Mr X to confirm he could not use direct payments to pay rent for his PA’s room. It explained now his housing benefit had ended the benefits service also could not pay towards rent for his second room. The benefits service said it would not discuss Mr X’s circumstances directly with the social care team. However, they contacted the social care team asking them to allocate a social worker for Mr X so he could challenge the Council’s decision.
  12. At the end of October, a senior practitioner recorded in their case notes that Mr X had not received clear guidance about who would fund accommodation for overnight care. In December Mr X sent another email to the Council expressing concern that he could not afford to pay double rent in London, just because he was disabled and needed overnight support. He reiterated this in January and told the Council he had now paid so much for the second room, his funds had reduced again under the housing benefit threshold. He provided bank statements showing he had paid for the second bedroom for three months.
  13. The Council allocated a case manager in January to review Mr X’s request. Mr X told the case manager the Council had not explained why it had stopped paying for the PA’s bedroom in April 2017. He said his income would likely rise again in the coming months and asked how rent for the second bedroom would be funded.
  14. Mr X highlighted he had been waiting for the Council to reconsider its decision since October and he was disappointed by the delay. The case manager asked Mr X if he had received a response from the benefits team yet. They said if he was again receiving housing benefit they would close the case. Mr X told the case manager they had misunderstood. He explained while he was now receiving housing benefit again, the Council had not resolved his query and he had paid rent for the extra room in the period when he was not receiving housing benefit.
  15. Mr X sent a formal complaint to the Council. He said it had not explained its decision or how he could appeal, and it had delayed reviewing its decision. He reiterated it would not be fair for him to have to pay double rent just because he was disabled.
  16. The Council replied in May. It accepted it had not yet made a decision after agreeing to consider Mr X’s request. It said it had provided Mr X inconsistent information. The Council said it would review this, and it apologised. It said its records showed Mr X agreed to pay rent for the second bedroom. I asked the Council to provide evidence of this. The Council was referring to Mr X’s comment of May 2017, that he could pay for the room for a short time only.
  17. The Council reallocated Mr X’s case to a senior practitioner to consider his request for it to reconsider its decision. Mr X told the Council he had rental debts of around £3,000.
  18. Mr X emailed the Council saying he felt its stance was legally wrong, and reiterated the Council had not explained why he could not use direct payments to pay for his PA’s room under the Care Act. The Council replied and said its stance was correct.
  19. The senior practitioner carried out a new care assessment, dated July 2018. This noted Mr X relied on his PA regularly to help him out of his building during fire alarms. They recorded Mr X needed someone else present all night to keep him safe. The Council recorded that due to Mr X being unable to meet his own needs independently, his wellbeing was significantly impacted.
  20. Mr X moved to a different council’s area in August 2018 and responsibility for his care needs transferred to the new council.
  21. Mr X does not feel the Council has adequately explained its decision, and he feels its decision not to fund the second bedroom left him with unmet needs. Mr X says he may start legal proceedings.
  22. The Council accepts Mr X’s eligible needs could not be met without a second bedroom. It says he should have sought housing benefit earlier to fund this.

Analysis

  1. The Council used discretion to pay for Mr X’s PA’s bedroom from 2014. This was before the Care Act came into force. The Council told me the legal advice it got at that time was about a different issue. However, the officer’s case notes say legal advice was gained and this said the Council should pay for the second bedroom. I have not seen the Council’s legal advice of 2014 despite requesting this. However, I am satisfied the Council decided in 2014 it should agree to allow Mr X to use direct payments to fund the second bedroom, and then subsequently failed to explain why it had changed its decision.
  2. The Council stopped allowing use of direct payments for the second room in April 2017. This was after the Care Act had come into force. Mr X had eligible needs, such as managing toileting and keeping safe in his home, which were present at night. The Council was under a duty to meet Mr X’s eligible needs. The Council did not consider how, or indeed whether, it could meet Mr X’s eligible needs without a second bedroom being available for a carer to sleep over. The Council changed its view on what direct payments could be used for without new legal advice. The Council should have considered how else it could discharge its duty to meet Mr X’s eligible night time needs. Instead, it simply stopped paying for the room. The Council told me it accepts Mr X’s needs could not be met without a second bedroom.
  3. The Council’s policy says it will not allow direct payments to be used to pay for “anything that is usually funded by other sources of income like… rent”. This clearly covers a person’s own rent. It does not say whether this includes rent for a second room for a carer, and it is not clear that rent for a second room in order to have an overnight carer is something that “is usually funded by other sources of income”. It is open to the Council to revisit the wording of its policy, taking appropriate legal advice, to clarify what this definition covers. It is not necessarily fault for the Council to have a policy not to allow use of direct payments for rent. Nothing in law says direct payments should be used to pay rent for a carer’s room. However, the Council’s blanket application of its policy without consideration of Mr X’s individual circumstances is fault. It fettered its discretion when it did not properly consider its decision to stop paying.
  4. There was then a significant delay in the Council reconsidering its decision. It kept Mr X up to date when he was awaiting allocation of a worker from social care. However, once a worker was allocated, there was delay in the Council reconsidering its decision. The worker confusingly told Mr X that if he was receiving housing benefit again they would close the case. This worker had been allocated to reconsider the Council’s previous decision, and had they closed the case this would not have resolved the issue. When Mr X complained, the Council accepted it had delayed making a decision. It apologised and agreed to review the request, and it allocated a new worker.
  5. The Council’s complaint response suggested Mr X had agreed to pay the rent for the second bedroom. However, this referred to a conversation where Mr X said he could pay for a short while only, until his housing benefit came through. Mr X did not agree to pay the rent for the second bedroom on any long-term basis. The complaint response was inaccurate.
  6. Mr X’s needs did not go unmet. He did not miss out on overnight care because of the Council’s decision. However, this is only because he paid for the extra room in the period between his eligibility for housing benefit.
  7. But for fault, the Council would have either paid for the extra room or met Mr X’s eligible needs some other way. On the balance of probabilities, this would have meant Mr X would not have had to pay for the second room. The cost to Mr X of paying for the extra room for five and a half months is injustice directly related to the Council’s fault. I have therefore recommended the Council refunds Mr X for five and a half months of rent for the extra room.
  8. Mr X raised the question of how the Council’s policy interacts with equality law, as he said that he was put to financial detriment due to his disability. I cannot comment on the suitability of the law, only on councils’ application of it. The law around housing benefit requires specific exceptions for people who need an extra room due to their disability. There is no similar specific law or guidance relating to direct payments, as they are designed to be flexible. As there is no law which says councils must fund a second bedroom through direct payments in such cases, I cannot find a council at fault simply for having a policy that suggests it will not do so. If Mr X feels the Council’s policy, or the law itself, inadvertently causes discrimination, this is an issue for the courts and it is open to Mr X to seek legal advice should he wish to pursue this.

Agreed action

  1. The Council has agreed to refund Mr X for the costs of five and a half months’ rent for the extra room from the end of August 2017, when his housing benefit stopped, to when it started again in mid-February 2018. This amounts to £2,280 (£195 weekly for 25 weeks). This is to recognise the injustice to Mr X of paying to meet his eligible night-time needs in the absence of the Council deciding how it would meet those needs. The Council has agreed to take this action within one month of my final decision and provide evidence to the Ombudsman.
  2. The Council has already apologised for the delays. However, it has also agreed to apologise to Mr X for not properly considering its decision of April 2017. The Council has agreed to take this action within one month of my final decision and provide evidence to the Ombudsman.

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Final decision

  1. I have found fault causing injustice and the Council has agreed to the action I recommended to remedy this. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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