Decision Date: 11th September 2019
Miss J was diagnosed with rheumatoid arthritis as a child. She lives in an adapted property with her young daughter. Miss J’s health condition means she is unable to lift her arms above her shoulders and uses a wheelchair to get around.
The Council supported Miss J for several years with a complex care package. She received 68 and a half hours of commissioned care per week to help with daily tasks such as personal care, cleaning, food preparation and caring for her daughter. Sometime in late 2017, the carer trained to meet Miss J’s full hair care needs moved to another post and was unable to continue supporting Miss J and her daughter.
In November 2017, the Council completed a financial assessment to review the amount of DRE (disability related expenditure) Miss J should receive and how much she should contribute towards her care costs. The Council advised Miss J it was unable to include her hair care costs of £25 per week as DRE because its policy only allowed for hair washing at a maximum cost of £10 per week.
Miss J contacted the Council to explain that her hair care costs were higher because of her Afro-Caribbean heritage.
She said her health condition meant she was unable to maintain her and her daughter’s hair daily and had to get a hairdresser to wash and braid their hair weekly. Miss J explained the various stages involved in maintaining Afro-Caribbean hair to ensure it stayed clean and healthy, which included braiding to minimise the amount of daily upkeep and stress caused to the hair and scalp.
Miss J asked the Council to reconsider the financial assessment which she said was discriminatory to her and other people of Afro-Caribbean origin.
The Council responded to Miss J and explained that it understood from her most recent care and support plan that she did not require help to shower and wash her hair. The team manager responding to Miss J said they had consulted Miss J’s social worker and Afro-Caribbean colleagues to help gain a better understanding of the issue. The team manager noted from her colleagues that braiding was not ‘required’ to maintain Afro-Caribbean hair and could therefore not consider this method of hairstyling as a DRE. While the team manager apologised for any offence caused, they concluded Miss J had not been discriminated against during the financial assessment and were unable to uphold her appeal.
Miss J approached her Member of Parliament (MP). The MP wrote to the Council to ask it to reconsider its decision.
Miss J told the team manager she found the comments in their response insulting and degrading. Miss J said the method the team manager had used to further their understanding of the issue was inappropriate and did not take account of Miss J’s individual needs or circumstances. Miss J also clarified that she could not wash her own hair and requested another appeal against the decision to refuse her hair care costs as DRE.
The same manager responded to Miss J’s correspondence three months later. The manager upheld their decision not to cover Miss J’s hair care costs as DRE and signposted her to the Ombudsman if she remained dissatisfied.
The Council wrote to Miss J when it received notification from the Ombudsman that she had escalated her complaint. The Council noted Miss J’s care and support plan included provision for carers to meet her hair care needs but said that it had now understood the commissioned care provider had been unable to provide suitably trained carers to meet this need.
They accepted Miss J’s receipts showing her hair care costs and decided to allow the maximum £10 per week DRE for hair washing that its policy provided for. They agreed to backdate the weekly DRE allowance for hair washing to the date Miss J was first invoiced to contribute to her care costs. It also confirmed her ongoing contribution to care costs would be reduced until her hair care needs could be met in full by her carers, since she wasn’t getting that service out of them. The Council maintained it could not cover Miss J’s entire hair care costs as DRE.
Quality of Care
In addition to her hair care, Miss J started to raise concerns about the commissioned care provider in November 2017.
She reported problems with one carer being unreliable and another carer smelling of alcohol. She said carers would regularly arrive late and leave early.
Part of Miss J’s care package was to support her with parenting. The delayed arrival of carers in the morning meant her daughter was often late for school, had to go without breakfast and the result was that she had to rely on support from relatives.
The Council agreed for Miss J to bank hours of missed care, for her to use when she needed more help with caring for her daughter (during school holidays for example). (Presumably, it agreed that with the Care Provider, under contract performance monitoring provisions.)
Miss J stressed to the Council that she did not want her daughter to become a young carer as a result of the gaps in the support.
In October 2018, Miss J had to raise concerns with the Council again as carers continued arriving late or missing appointments.
Miss J contacted the Council again in February 2019 as she continued to have issues with the commissioned carers. She listed times between August 2018 and the beginning of December 2018 when there had been problems with lateness, missed appointments or reduced hours of care.
Miss J asked the Council for a review of her care and support plan to deal with the issues about her hair care and the quality of care.
The Council met with Miss J and two of the care provider’s managers in May 2019. The care provider’s managers confirmed they would be available to cover any shifts that were cancelled at short notice, by providing a large pool of carers. The Council noted Miss J had accrued 123 hours of missed care between June 2017 and March 2019, which it was agreed that Miss J was able to use flexibly to provide more support on specific days if needed.
Miss J stopped making payments towards her care costs in November 2017, when she first reported problems to the Council. The Council adjusted the amount Miss J owed when it agreed to allow the £10 per week DRE for hair washing, since it meant that her contribution towards her care charges was logically reduced.
Miss J’s outstanding debt for care costs was reduced from £1,332 to £612.
The Council referred the otherwise outstanding arrears to a debt collection agency who has since returned the matter to the Council as Miss J has refused to pay.
Miss J felt the Council should not have instructed the debt collection agency to pursue her for a contribution to her care costs whilst she was in dispute about the quality of care she had received. She found the experience of agents visiting her property to collect the debt distressing.
What was found
The Council has assessed Miss J and her daughter’s hair care as an eligible need in her care and support plan. When the care provider was not able to meet this need, Miss J asked the Council to agree for her hairdressing costs to be classed as DRE. Miss J’s request should have been referred to her social worker to initiate a review of Miss J’s care and support plan rather than a financial assessment of her contribution towards her care costs. The lack of a joined-up approach and communication between the financial assessment and adult social care teams in Miss J’s case meant this error was not identified sooner. This was fault and caused avoidable distress and frustration to Miss J.
The Council was at fault when the same officer reviewed and responded to Miss J’s appeals. The Council only realised and corrected the error when the Ombudsman notified it Miss J had escalated her complaint. The Council’s delay in identifying its error put Miss J to further inconvenience which could have been avoided.
The Council’s DRE policy and the Care and Support Statutory Guidance both state that each person should be assessed on their individual needs and circumstances. There is no exhaustive list of items a council should or should not include as DRE. The Council was at fault as it fettered its discretion when it refused to consider allowing a higher amount of DRE for Miss J’s hair care costs based on her individual needs and circumstances.
The approach the Council took of asking Afro-Caribbean colleagues was fault as it failed to take account of Miss J’s individual needs and caused unnecessary distress and offence.
Quality of Care
There were persistent issues with the hours of care Miss J received since November 2017. The hours she banked were considerable, and the LGO advised that concerted efforts needed to be made to avoid this fault happening again.
The Council’s agreement for Miss J to bank the hours of care missed, helped her to use those hours flexibly. The LGO considered that this went some way towards remedying the difficulties she and her daughter experienced. The LGO further recommended that the Council commence monthly monitoring of the care provider’s performance to ensure the measures it put in place remain effective.
The issues Miss J had with missed and late care visits also had an impact on her daughter. There was little evidence to show if the Council considered it owed a duty to Miss J’s daughter under section 17 of the Children Act 1989 as a child in need. The LGO recommended that the Council consider assessing whether Miss J’s daughter needed support as a young carer.
The Council’s financial assistance policy states it will pursue people who fail to pay the contributions towards their care costs and this action may include taking the individual to court to recover the arrears. Although the Council complied with its policy in Miss J’s case by pursuing the arrears, more should have been done to recognise the link between her non-payment and the issues she experienced with the quality of her care. The distress Miss J experienced from receiving contact and visits to her home from debt collection agents might have been avoided if the Council had resolved the issues she was having with her care sooner.
Points for the public and councils
CASCAIDr sees problems relating to dispute care charges when the care has been
- Not delivered at all
- Delivered but found seriously wanting in terms of quality
- Delivered but delivered late
In any contractual context, anyone paying for a service themselves, privately, or through a direct payment, would expect the provider to acknowledge the breach of contract, by reference to
- Crediting the person with the charge for undelivered care
- Crediting the person with a reduction in the fee for care that was not of a reasonable standard
- Crediting the person with a reduction in the fee for care that was delivered but which was delivered late
- Compensation for the aggravation and distress caused to anyone supposed to benefit from the service (here the woman’s daughter as well as the woman) because the essence of contract is for support and comfort and wellbeing, and this kind of damage is wholly foreseeable and not remote
When a person is commissioned for by the council, they are entitled to
- Have what was planned for, actually delivered
- Have it delivered to a reasonable standard
- Have it delivered on time, more often than not
- Not be charged more for the service than it cost the council
- Not be charged more for the service than the reduced cost to the council should have been calculated to be after the council as contractor had held the provider to account.
We would say that it stands to reason then, that a reduction should have been made against the charges thought to be outstanding, not merely on account of the increase in DRE arising out of the hair care dispute, but also on account of the poor provision which the council took so long to ramp up an acceptable quality of performance, upon.
The Care Act guidance is crystal clear that debt recovery process should only be embarked upon after a rational and conscientious attempt has been made to resolve the reasons for the dispute.
On the hair care front, it seems obvious to us that a council has got to take notice of cultural issues in relation to the adequacy of a care plan and therefore the sufficiency of the budget. If it accepts that hair CARE is part of it, then shaving would be implicitly part and parcel for a man; ritual shaving would be part and parcel for a Muslim, and managing hair in what is a completely normal way (braiding) should be part and parcel of a care package for someone not able to do it for themselves, particularly if one is sensitive to the needs of a child to fit in and convey respect for cultural norms. We are not talking here about an asserted need for something as personal as pubic vag-azzling, are we?
How a council finds out about cultural norms, if NOT by asking around (but not merely in-house colleagues who are handy!) and researching is beyond us, but of course it should start with asking the person themselves how important it is to THEM and their child in this case.
If a plan provides for hair CARE, and not merely washing, and the person cannot get that service from the commissioned provider, the council MUST, in legal terms, allow the person to claim the cost of meeting that need (the need that it owes a duty to meet out of public monies) as DRE.
Whether doing so will make a difference to the overall balance between the client’s preserved personal money, and the money received from the council is a matter of maths in individual circumstances affected by a council’s wider charging policy. All that can be said is that the LGSCO is not WRONG to say that the two concepts are different, and that if a need in a plan is not being met, that plan needs to be reviewed and the problem sorted through re-commissioning – or by providing a split budget, some in direct payment form.
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The full Local Government Ombudsman report of Leeds City Council’s actions can be found here