London Borough of Sutton found NOT at fault in carrying out a care and financial assessment

Decision Date: 30th September 2019

What Happened

Mr D complained on behalf of his mother, Mrs X.

Mrs X was 89 and lived in her own home. She had dementia and required support with her daily care needs.

Up until March 2018, she had used her own funds to pay for her care as she was over the threshold of capital to qualify for Council funded subsidy.

In March 2018, Mr D contacted the Council to say Mrs X’s capital had fallen below this threshold. The Council carried out an assessment and determined she was eligible for support.

The assessment highlighted that Mrs X had a number of eligible care needs:

  • “being able to use her home safely”.
    • The assessment acknowledged that she was rarely left alone following a number of previous incidents where Mrs X had put herself at risk.
    • The social worker concluded that, “it is clear that if left alone for substantial periods of time, Mrs X would be at risk of leaving her home.
  • The Council said there was no evidence that Mrs X had night time care needs that were eligible for support.
    • They said hourly care calls were over and above what would normally be provided to someone with dementia.
    • If such needs did exist, the Council said they would consider whether her needs could be met in other ways, such as door sensors and a telecare alarm, rather than someone being with Mrs X continuously.

The assessment concluded “Mrs X continues to require a substantial degree of support”. However, because of uncertainty about the extent of her needs, the social worker recommended that it should conduct another special assessment over a non-stop 72 hour period.

Mr D said he was concerned about this because it would be too distressing for Mrs X to have strangers in the house. The Council then agreed it had sufficient information already so the further assessment was not actioned.

The Council’s care and support plan determined that Mrs X’s needs could be met by way of 31 hours of support per week. This would be managed by four hourly care calls per day, plus three additional hours.

The Council carried out a financial assessment. Mrs X’s client contribution was assessed at £69 per week. Within the financial assessment, the Council had made allowance for her disability related expenditure, [unusually] including cleaning and boiler maintenance. This reduced the amount she needed to pay.

Mr D said the financial assessment was incorrect for the following reasons:

  • The date of her claim was backdated incorrectly, from 2 April rather than 27 March. (Her assessment took place on the 27th of March, but they backdated the claim for DRE deductions to one week later.)
  • Inflated figures were included in the “tariff from capital” part of the financial assessment.
  • He also said there has been “double counting” of attendance allowance.
  • It did not include the cost of the private care she continued to pay for, herself, or necessary transport costs incurred by her family when they were looking after her.

The Council said that if her family chose to pay for extra care, it would not be counted as DRE because it was the family’s choice to do so.

What was found

In this report, the LGO stated: “We are not an appeal body, so cannot comment on the judgements and decisions made by councils in the absence of fault in the process. Neither are we a court, and so we cannot determine the law about what councils must consider when assessing how much a person can pay for care. Our role is to review the process by which decisions are made and decide if there is fault in that process.”

Comment: that is not a proper view of the scope of the LGO’s jurisdiction, in our view. If a decision is so irrational as to have emerged ONLY through a flawed approach, then even if there is no fault in the process, the LGO will often find fault simply based on the absence of any coherent reasoning. Likewise if an outcome turns on a decision as to the meaning of a word in legislation that is contrary to existing case law on that wording, the LGO will often find that it was not open to the council to reach that conclusion.

Below we have set out what the LGO concluded in greater detail.

Financial Assessment

The Council said they backdated from 2 April, because “the financial assessment outcome was that Mrs X was only under the capital threshold from Monday 2 April. This is in line with other benefit entitlements such as housing benefit”.

The Council’s complaint response stated that such assessments applied from the Monday following the date of the assessment in line with other benefits being uprated.

  • The LGO stated that although there was no reference to alignment with other benefits being uprated within the Council’s own charging policy, they considered it to be a minor fault which did not cause significant injustice.

The Council said that Mrs X’s capital had not been reduced to allow for an outstanding care bill. At the time of the assessment, that bill had not been paid. The Council said that if the bill was paid, and Mr D provided proof, the account would be adjusted accordingly.

  • The LGO recommended that Mr D discuss this directly with the Council.

The Council said Mrs X’s bank balance was included and counted as capital because Mr D had confirmed he had been using her attendance allowance which is income, to pay for care, from this account. This benefit had already been included as income within the financial assessment. It said there was ‘no evidence’ that her bank balance included accrued attendance allowance.

  • The LGO agreed with the Council’s position.
  • It also stated however, that if Mr D had evidence that not all of Mrs X’s attendance allowance was used for care and her bank balance included unspent attendance allowance, then this should be sent to the Council for consideration and possible adjustment of the assessment so that there would not be double counting.

Mr D said the Council incorrectly treated attendance allowance as income rather than an expenditure from income (we cannot understand what Mr D could have meant here as attendance allowance is obviously income).

  • The LGO stated that the statutory guidance was clear in stating that the lower rate attendance allowance should be included as income within the financial assessment.
  • It found that this is what the Council had done and so there was no fault.

The LGO found no fault in how the Council carried out its financial assessment.

It stated it properly followed the statutory guidance, and further adjustments were possible if Mr D provided additional evidence to the Council.

Disability related expenditure

Mr D complained that the Council failed to meet Mrs X’s needs, as they did not assess her properly. This in turn led to the Council not including private care costs in her financial assessment.

The Council’s policy stated, “Disability related expenditure includes costs of any privately arranged care services, as agreed as necessary during support planning, including respite care…for example – day or night care which is agreed as necessary but not arranged by the local authority”

The LGO reported that the statutory guidance states that where someone is paying for care because of their disability, as Mrs X did, a council can consider whether to treat this as DRE. The LGO stated that this does not mean a council must do so in respect of all privately funded care.

Because night time care was not an assessed need, for care planning purposes, the Council determined that the existing arrangements were a choice rather than a requirement and so no allowance was made for this expenditure within her financial assessment.

Care needs assessment

In relation to the adequacy of Mrs X’s needs assessment, the LGO stated the following set out below.

The Council said its assessment had not demonstrated any need for Mrs X to have personal support through the night.

But in response to Mr D’s concerns about this, it proposed to carry out a further assessment.

  • The LGO said that the Council was not wrong for insisting on an assessment prior to making a decision about her overall care needs – it was a task of professional judgment of the social work team to decide.
  • The LGO was also satisfied with their approach because they took on board what Mr D said about Mrs X becoming distressed. It decided the 72 hour assessment was unnecessary considering the potential impact Mr D said it could have on his mother, therefore it decided it had sufficient information to make a decision about her support plan.
  • “The Ombudsman does not interfere with such day to day decisions so long as the correct procedures are followed.” It was satisfied it had done so, in this case.
  • No fault was found.

The Council had offered to revisit the assessment. The LGO recommended that if Mr D remained dissatisfied with Mrs X’s current support plan, he should accept this offer.

The LGO did not recommend reimbursement for any distress or uncertainty the Council caused Mr D. Neither did it recommend reimbursement for periods of unmet needs, as the Council nor the LGO had identified any needs in the assessment which are unmet.

The LGO found no fault with this assessment, therefore no fault with the way the Council assessed her DRE. The LGO said this:

For me to uphold Mrs X’s complaint I would have to decide there was fault with her assessment and that Mrs X had assessed care needs that were not being met by the Council.

Consequentially, the LGO found that any costs incurred by family members travelling long distances to care for her, were also a choice rather than to meet a need that had been identified in her care plan. It said there was no obligation on the Council to include these costs as DRE.

The LGO stated that the Council properly considered Mrs X’s DRE and made a number of allowances in line with good practice guidelines. It was not obliged to make any further allowances for needs that had not been identified in her assessment.

All in all, the LGO did not find fault in the way the Council proceeded.

Points for the public, councils, NAFAO, service users and families and advocates

We do not think that this report is absolutely reliably correct in legal terms, for the following reasons:

The regulations on charging do impose an obligation to deduct DRE. The interpretation of that concept is what requires a judgment to be made and interpretation is usually a matter of law for judges, not a matter of discretion subject only to reasonableness …

4.—(1) Where a local authority takes into account in the calculation of income any disability benefits the adult receives, any disability-related expenditure incurred by the adult.

(2) In this paragraph— “disability benefits” means any attendance allowance (other than severe disablement occupational allowance), disability living allowance or personal independence payment; “disability-related expenditure” includes payment for any community alarm system, costs of any privately arranged care services required including respite care, and the costs of any specialist items needed to meet the adult’s disability.

That is a duty. There is clearly a judgment required as to the meaning of required and in relation to what counts as disability related expenditure.

In that regard, any council is obliged to follow the Guidance, unless there’s a very good legal reason for not doing so.

The Guidance is clear that the test of what is DRE is not merely what is agreed in the care plan as ELIGIBLE assessed need, but being purchased privately. Clearly when that IS the case, it must be DRE (eg things like shopping, cleaning that the person prefers to organise for themselves). It says this:

39) Where disability-related benefits are taken into account, the local authority should make an assessment and allow the person to keep enough benefit to pay for necessary disability-related expenditure to meet any needs which are not being met by the local authority.

[In saying ‘should’ rather than must, the Guidance is fudging the difference between the duty to make the deduction and the need to decide what it is that counts as DRE… but it was written by non-lawyers, so it is not a criticism].

40) In assessing disability-related expenditure, local authorities should include the following. However, it should also be noted that this list is not intended to be exhaustive and any reasonable additional costs directly related to a person’s disability should be included:

41) The care plan may be a good starting point for considering what is necessary disability-related expenditure. However, flexibility is needed. What is disability-related expenditure should not be limited to what is necessary for care and support. For example, above average heating costs should be considered.

[Also, the Guidance does not say it’s only any eligible needs that can or should be seen as DRE…]

The example then given is of a man claiming internet access as DRE. The implication is that that would not be in the care plan, although there is no explanation of why it would not be. The only explanation can be that ‘everyone’ uses the internet, like everyone needs to eat…but one can see that reasonable people could disagree on the question whether mobile phone usage is disability related, on that footing. Councils do not tend to PROVIDE equipment (which would have to be provided for free) just because it would be useful, when it is an item that everyone buys anyway…

In respect of whether councils should include private care costs as DRE, NAFAO practice guidance states the following should be included as DRE: “Actual cost if social worker confirms requirement as part of the Care Plan and Council supported care is reduced accordingly.”

This seems to envisage that DRE can only be established if the person is saving the council the burden of meeting the needs the council would otherwise have to meet, by spending their own money; which is not defensibly correct, given the Guidance. We do get that it might have been overlooked that the words above point to that dubious interpretation, whereas all that may have been meant was that officers should DEFINITELY allow it if it was mentioned in the care plan and being paid for privately, and that that was not meant to exclude other needs, but we doubt that.

We think that NAFAO guidance is misleading all local authorities in this regard.

What really underlines the mistaken approach on the part of the LGO’s investigator, we think, is the suggestion that to find in favour of a complaint about DRE, one would have to decide that there was something wrong with the assessment of need. We do know that that assessment is supposed to cover ALL the needs that arise, not just those which are eligible, so if that difference was what the LGO was meaning, then that should have been made clear. That is, if the LGO was agreeing that there had been NO suggestion that the lady in this case had ANY night time needs at all, and that her family were doing or paying for some inputs during the night, unnecessarily, then s/he should have said so. Otherwise, it could look as if the LGO is endorsing looking at DRE as being set by the contents of the care plan, which is clearly wrong.

The point is that there are many things that it’s simply not feasible for councils to commission any more cheaply than human beings can buy things for, and that the range of needs there are that do need to be met, is so diverse – and THAT’s why there’s this penumbra of needs that can be met through deduction from one’s income, during financial assessment.

The decision also overlooks the fact that many years ago, before even Fairer Charging was the Guidance on charging under the old law, there was guidance that sums spent by relatives on a person’s needs were to be treated as DRE. We think that that is because in the old days, there was a proper assumption that such sums were not gifts, but offered up as loans to loved ones or the extension of the provision of necessaries to people lacking in mental capacity, thus signifying debt on the part of the client that ought in all fairness to be reflected by way of deduction.

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The full Local Government Ombudsman report of London Borough of Sutton’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/18-019-872