Decision Date: 20th November 2019
Mr C represented Mrs B formally through a power of attorney and complained on behalf of Mrs B.
In 2013 Mrs B received 1.5 hours of care in her home per week, and a July financial assessment showed that she had potential disability related expenses (DRE) of £43 a week for shopping, gardening, house and window cleaner and chiropody. The report did not state the consequential charge being levied but DRE must have reduced it.
Another financial assessment in October 2013 concluded that Mrs B needed to contribute £22 a week towards her care, but the financial assessment failed to include her DRE in error.
By October 2017 Mrs B’s support had increased to 10.5 hours per week.
Mr C took over management of Mrs B’s finances in 2018, after which it became apparent that the Council had not included her DRE in any of her financial assessments since 2013.
In August 2018 the Council completed a reassessment and recalculated the DRE as £88 and Mrs C’s contribution as £7 per week.
A refund of £4197 was made to Mrs B on 21 June 2019 on account of another attempt at calculating who owed what to whom. Mr C complained that this was not sufficient.
What was found
The Council was at fault as it failed to include Mrs B’s DRE from June 2013. The Council accepted this, and agreed to increase the refund by an extra £3874. The additional refund was an estimation of the increase of DRE in line with the increase of Mrs B’s care needs over the years. The LGO considered that even though the amount was estimated, it considered it a reasonable one.
In addition to the refund of £8071, the Council agreed to carry out a new financial assessment for Mrs B.
Points for the public, charging officers, councils, families and service users.
Disability related expenditure is one’s own money spent privately on things or services that are incurred on account of one’s illness or condition, and which are ‘needed’, not merely in the sense of being accepted as ‘eligible’ needs under the Care Act, but privately funded from that choice so to do, but things or services which are objectively definitely ‘needed’, and not merely indulged in or wanted.
DRE is taken off one’s other assessed income if one is in receipt of disability related benefits and they are being counted in by the council’s charging policy in the first place; so the concept operates to make invisible, if accepted, some of one’s own committed money, on the footing that one needs to spend it anyway.
Some councils have flat rates of DRE which they will allow to be claimed, regardless of proof; amounts over and above that, need to be established by reference to average household expenditure for non disabled people, and/or receipts, invoices, payments out, etc.
Some councils have a policy that the need has to have been referred to in the care plan, and the important thing is to note that that does not and cannot mean only that which is referred to in the part that would otherwise be publicly funded eligible need because the Guidance prohibits that. A council could reasonably perhaps say that DRE would be allowed, if the needs x y and z that had been noted during assessment had been noted during care planning as going to be met through this voluntary ongoing private outlay; so that whether they were needs that were already found to be eligible – or NOT – the impact thereby managed would be treated as managed, and not requiring to be met or counted in, by the council.
That would not necessarily be unreasonable but it would be hard to explain. The wider point here is that having to get it pre-agreed at the care planning stage where people are ignorant of their RIGHTS would tend to mean that most people did not get it sorted at that stage at all. That would be open to organisational manipulation and the agenda to save money at all costs by making the public shoulder all that they can. It would also be open to the criticism that it overlooks that the person’s own money REMAINS their own money, even if the charging framework kind of assumes that whatever is not disregarded by finance staff in the council IS available for charges, up to the maximum percentage that the council’s charging policy seeks to recover – even if a person is spending it perfectly reasonable on friends, relatives, and consumption of the pleasures of life, as well as their own view of their own needs.
This report does not go into how it could be that a council failed to allow for any of that for 6-7 years, or whether it was doing the same to other people. It also failed to explain how it calculated and recalculated the DRE.
Once the omission was noted, it seems that it was accepted that the council should err on the side of generosity, with regard to accepting without invoices over that unduly long period that the expenditure would have existed and would have been slowly going up (and that would mean that interest did not also have to be paid!). That is good administrative practice, in anyone’s view, we think.
We think that it is interesting to note that an action for restitution of an unlawfully calculated charges is something that might be limited to 6 years, or maybe even longer, if the logic behind the claim to recover money is based on the doctrine of one’s mistaken liability to pay, as here, as opposed to the choice to spend money on unlawfully missing services, which is very much more of an unjust enrichment basis for the claim. Limitation periods do not run until ‘the mistake’ has been identified, thus stretching the period for recovery out further. Even if one might say having an attorney to act in the management of a person’s own money means that this should have been spotted sooner, limitation is not an attractive defence for any wrongdoing council to have to mount against a vulnerable adult.
If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.
The full Local Government Ombudsman report of Thurrock Council’s actions can be found here