Darlington Council at fault for improperly assessing disability related expenses

Decision Date: 20th December 2019

What Happened

Mrs B complained on behalf of herself and her husband.

Mr B received 20 hours of support via a personal assistant (PA), and Mrs B managed his direct payments.

In October 2017 the Council told Mr B he had to pay £23 towards his care each week. (Previously he had paid £3).

His contribution increased because the Council reassessed his contribution after he stopped receiving a high-rate Personal Independence Payment (PIP) towards his care. Receiving a high-rate PIP implies a higher level of disability and so results in a higher MIG than someone who receives the standard-rate PIP for care, so when one goes down, so does the other.

Mr B’s MIG had therefore dropped, which resulted in a different calculation of his contribution to care.

Mrs B complained to the Council about this reassessment.

The LGO found fault in the Council’s reassessment;

  • It did not make clear if Mr B needed to pay rent and if so why the Council would not disregard this when assessing his contribution. Housing costs are a mandatory disregard.
  • It disregarded a payment Mr B made towards council tax but it was not clear why this was as it did not mention this in its policy.
  • It did not disregard payments Mr B made towards utilities – it does not have to, unless they are above average costs on account of disability, but the LGO said that it found its decision here confusing.
  • It knew that Mrs B had debts but it was unclear how it considered those in its assessment.
  • It had not considered waiving Mr B’s charge under its exceptional circumstances policy (necessary on account of the need to consider affordability features of any charging policy) nor had it properly reviewed the contribution it asked Mr B to pay in line with its policy.

The Council agreed to a series of actions to remedy the complaint, including reviewing its policy guidance, and to review Mr B’s contribution when that review was completed.

The Council’s revised policy for undertaking financial assessments said:

  • That it will carry out individual assessments but will “consider implications” for any partner of the assessment. This is what Government guidance says it must do rather than carry out an assessment based on joint income.
  • That it will disregard any rent payments not covered by housing benefit. It will disregard 50% of such payments if the assessment is for one member of a couple.
  • That it will disregard council tax payments.
  • That it will consider if someone has expenses on utilities “above the average levels for the area and housing type”.
  • That it will disregard payments towards debts incurred before someone needed care and support. It will sometimes disregard debt repayments incurred later where there are “exceptional circumstances”.
  • That it has a policy for reviewing assessments and considering complaints about them.
  • That it has discretion to always waive charges in exceptional circumstances.
  • In regards to DREs, it stated that “where a disregard is relevant, evidence of actual expenditure will be requested. If receipts have not been kept the Council can request that this is done for future expenditure. It is legitimate that the Council can verify that items that have been claimed for have been purchased”.
  • It also said “If the individual fails to keep future receipts and there is doubt as to whether the expenditure was actually incurred it is reasonable for the Council not to include this in the assessment.”

The Council reassessed Mr B and concluded his contribution to be £25 in December 2018.

In its assessment the Council allowed some disability related expenditure for extra laundry and utility costs. It disregarded Mr B’s payment towards council tax and found Mr B did not have to pay anything towards his rent as his housing benefits covered it.

Mrs B also listed disability related expenses (DRE) relating to window cleaning, gardening, domestic cleaning, incontinence pads, as well as mobility expenses to transport Mr B to social activities. She did not provide receipts for those.

The Council said “It was explored with the social worker if petrol, domestic and sanitary costs could be included as part of allowable disability related expense, but it was determined that these were not part of your husband’s assessed needs and therefore no allowance was given in the financial assessment”.

Mrs B asked for a review but said she could not provide receipts due to her own health issues.

The Council completed the review in June 2020, where the Council confirmed its decision of a £25 contribution. It said: “in the absence of that information (receipts) we are unable to evidence the completion of the income and expenditure statement and having considered our policy on waiving contributions there do not appear to be any extenuating circumstances in your case”.

The Council said it would review its decision again if Mr and Mrs B could provide receipts.

What was found

The LGO found no fault in the revised policy used by the Council to assess Mr B’s financial contributions. It complied with Government guidance and offered mostly clear advice to officers and users of services on how the Council would decide what someone should pay towards their care.

The LGO also found no fault in the basic calculation followed by the Council when it came to assess Mr B’s financial contribution. There was no evidence to suggest mistakes were made.

The main issues related to how the Council determined Mr B’s DRE.

So the LGO set out a series of questions the Council should ask in deciding if an expense is one it should disregard in a financial assessment as a DRE:

  1. First, is the expense incurred because the person’s disability?
  2. Second, is the cost reasonably incurred? It is here the Council can consider whether there is a cheaper or alternative way to meet the need.
  3. Third, is there proof of the expense incurred which the Council may reasonably ask for.

If the answer to all three questions above is ‘yes’ then the Council should allow the expense.

The LGO found that in Mr B’s case the Council did not demonstrate that it made a sound and justifiable decisions on the financial contribution it wanted Mr B to make towards his care. It did not properly consider if it should allow further disability related expenses in its calculation, and it did not provide sufficient clarity to Mr B about its decisions.

The LGO recommended that the Council waive any charges incurred since 2019, until the Council complete a further re-assessment Mr B’s financial contribution. As part of that it will:

  1. Write first to Mr and Mrs B and clearly set out any information it wants them to provide
  2. When it makes its decision the Council must take account of the analysis the LGO provided and clearly explain its reasoning if it does not accept expenditure declared by Mr and Mrs B.

Points for the public, charging officers and service users and families

Disability Related Expenditure cannot only be limited to things set out in the care plan, either as to be provided by the council OR to be accessed by other means for the good of the person and offsetting impact most commonly from ineligible needs.

Debts are not mentioned in the charging guidance, and this is the first policy we’ve heard of where it’s clear that debt incurred before one needed care and support should of course be regarded as appropriately paid off. It’s legally enforceable, and it would be shocking if it were not to be allowed for, not as DRE but as part of affordability of the overall charge.

We don’t think that there’s any justification for any blanket REFUSAL to disregard debt payments even if they are incurred AFTER one needs care and support. The charge due to social services is not a secured or preferred debt. The money one has, remains one’s own money, and there is no justification for a service user not spending it UNLESS that is done to avoid paying for charges.

The partners’ point is that it’s wholly foreseeable that couples subsidise each other after a lifetime of togetherness, depending on arrangements between them. So if the richer of the two is the service user and the debts are all properly regarded as joint, and the richer one pays for more of the bill than the partner, then that is something that should be supported to go on, and thus count as a disregard.

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