London Borough of Bromley Council at fault for delay in financial assessment appeals process

Decision Date: 22nd November 2019

What Happened

Mrs D complained on behalf of herself and her son, Mr E.

Mr E lived in supported living accommodation.

Financial assessment

Mrs D complained to the LGO that each year she appealed her son’s (Mr E’s) financial assessment to decide his contribution to care costs. It generally took around a year to complete the stages of the appeal; Mr E’s contribution reduced a little at each appeal, and that suggested to Mrs D that the Council was just not getting it right. Mrs D then started fighting all over again for the next year.

In February 2018 the Council completed its annual review of Mr E’s financial contribution towards his care; in March 2018 Mrs D appealed. The Council did not conclude Mrs D’s appeal until April 2019 – 61 weeks later. Council Guidance states that the appeals process should take a maximum of 22 weeks.

The delay in the Councils appeals process was fault. It involved a lot of time for Mrs D. It caused uncertainty over what the final amount of money would be, which made it difficult for her to budget Mr E’s money.

Mrs D highlighted to the LGO that she actively pursued the appeals, and worried about people who may be unable to do so, or unable to have someone do it for them.

The Council said it signposted people to voluntary organisations who could assist those who could not make an appeal themselves.

Mrs D complained that the amount of evidence one had to provide was overwhelming and unduly arduous.

The LGO did not find the Council’s process unreasonably demanding.

Because the appeal took over a year it meant Mrs D received letters in March and April 2019 for both the 2018/2019 financial contribution and the 2019/2020 contribution. Mrs D was managing appeals for both years at the same time.

This caused confusion as Mrs D received various letters in close succession relating to different periods and providing different amounts.

This would not have happened but for the Council’s delay.

Mrs D felt that because the Council reduced the amount of Mr E’s contribution at each stage of the appeal, it was evidence the Council was not getting it right in the first place.

One of the reasons Mr E’s contributions reduced at each stage was because of further evidence Mrs D provided.

The Council accepted it should have considered transport costs at the first stage of the appeal rather than the third stage, as Mrs D had provided the relevant evidence.

The Council’s failure to consider Mrs D’s evidence, and denial that it had it, caused frustration for Mrs D. The Council continued to send monthly statements during the appeals process, which Mrs D found confusing and stressful.

The LGO did not criticise the Council for continuing to send invoices. The Council should not start any recovery action for non-payment while the amount is in dispute, but it was not fault of the Council to continue to send invoices of the amount that was supposedly outstanding.

Although it was not fault for the Council to send invoices, the invoices it sent to Mrs D were confusing. They contained two different amounts, for the same date, with no explanation. It appeared the Council was potentially charging Mr E twice; Mrs D still did not have clarity on this issue when talking to the LGO.

All in all the LGO concluded that the Council correctly completed Mr E’s financial assessment regarding the figures it asked him to contribute. It applied the correct law and guidance to establish this.

The Council failed to act under its policy and its own service standards as it delayed the appeal process and failed to consider transport costs at the first stage. This led to time and trouble for Mrs D and uncertainty for a longer period over what Mr E’s correct contribution was.

Disability Related Expenditure (DRE)

Mrs D said medical consultants had advised Mr E that he needed jaw massages (It was unclear from the report whether they were mentioned in his care plan.) The NHS would not provide the massage, so Mr E paid £50 a fortnight for the treatment. Mrs D said this was an expense directly related to a health problem, and so the Council should give a DRE allowance in the financial assessment for this.

The Council said this was a medical need, so the NHS should pay for it. Mrs D said the jaw massages would help Mr E cope with his symptoms, which were caused because of his disability.

Mrs D had not appealed the NHS decision yet, so the LGO suggested that Mr E should ask his GP to make an Individual Funding Request to the local Clinical Commissioning Group.

If, after exhausting the NHS processes it still will not provide the treatment, the LGO said Mrs D should ask the Council to reconsider the massages as DRE

The LGO went on to explain that it could be allowed, because it would not be asking the Council to provide a health service, but to allow Mr E to keep enough disability benefits to pay for the service.

The LGO stated ‘there is nothing to prevent councils providing ancillary services related to health needs.’ [a point we have made elsewhere on this site: disability related expenditure is tied to attendance allowance which is not in itself tied only to disability, as opposed to illness or injury….]

The LGO concluded that the Council was not at fault for not providing the jaw massage as DRE at this stage. It was appropriate for the Council to first ask Mrs D to exhaust all avenues with the NHS as it appeared to be directly related to a health need. [We do not agree that the council should just leave the client to pursue the health service without support]

Mrs D said Mr E used more gas and electricity because of his disability; he had carers 24 hours a day who were also using the facilities.

The Council used the guide provided by the National Association of Financial Assessment Officers to calculate allowance for gas and electricity. This showed the average amount for a single person living in a flat or terraced property is £1206.07 per year. Mrs D provided evidence of Mr E’s gas and electricity costs which showed they were £973 in 2018 and estimated to be £944.82 in 2019. As the amounts were less than the average amount the Council did not give any DRE allowance, as there was no evidence Mr E has higher gas and electric costs because of his disability. The Council was not at fault.

What was found

The Council took over a year to complete an appeal of financial contribution for adult care services. The Council should complete such appeals within six months, its delay was fault and caused worry, confusion, time and trouble to the complainant. The LGO recommended the Council apologise, pay £250 and review its process to see if it can improve it or if this delay was a one-off issue.

Points for the public, charging officers and councils

This is useful in relation to how fast the charging / finance section should be. Charging is a statutory function, and legislation going back to 1970 requires social services councils to ENSURE that sufficient staff are funded for these functions, such that there should not be frozen or vacant posts, or waiting lists beyond a timely period. This report indicates that 6 months is about the most it should ever take to appeal a financial assessment.

The point on DRE we have mixed feelings about: great that it is acknowledged that a health related expenditure is perfectly capable of being DRE, but not so great that the LGO seems to think that a person should be left to pursue the NHS. The Guidance says that needs should not be regarded as MET just because some other agency could or should meet them, but that the Local Authority should use integration and joint networking channels to support the person’s enforcement of the other agency’s obligations if such exist (or powers, if discretion is involved).

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

https://www.lgo.org.uk/decisions/adult-care-services/charging/19-002-909