Cheshire West and Cheshire Council at fault for stopping direct payments without explanation and applying an arbitrary DRE disregard

Decision Date: 22/08/2019

What Happened

Mrs X complained on behalf of her daughter, Miss Y.

Miss Y had severe learning disabilities, and Mrs X was the appointee for Miss Y’s benefits. In September 2014, when she was 17, she moved into a 24 hour support living facility.

When she turned 18 (October 2014), the Council should have completed a financial assessment in preparation to move her over to adult services; however it failed to do so. At this time the Council did not have a functioning transition team, so children’s services were required to fund support for adults until the summer following their 19th birthday. In Miss Y’s case this was the summer of 2016.

Miss Y received funding from children’s services via direct payments (DPs) to help Miss Y access community activities and fund transport. The LGO identified that these were classed as a need from assessment records from children’s services, and from then also in subsequent adult care act assessments under ‘community activities’.

Mrs X told the LGO that the direct payments stopped when Miss Y moved to adult services (July 2016). As a result, Miss Y was left with no option but to fund the activities from her state benefits, and Mrs X contributed where necessary. Mrs X repeatedly asked the council why the DPs had stopped, but they never explained why.

The Council’s Adult Services told the LGO that the DPs were for horse riding lessons whilst Miss Y was living at home, and said it stopped them in 2016 because ‘At this time [Miss Y] was in receipt of welfare benefits – Employment support allowance and Personal Independence payment, “and funded activities through this income”’. It said “There is no guidance within adult social care as to what payments can be used for. As a local authority, this is something we are addressing through our disability board”. (it was unclear from the report if the Council was referring to the welfare benefits, or DPs)

The Council did not complete a financial assessment until September 2017. In recognition of this the Council waived all charges between 1 October 2014 to 7 April 2017 (the October date being the date from which they should have assessed her when she turned 18, but failed to do so).

The financial assessment highlighted that the Council applied a ‘standard’ allowance of £25 for Disability Related Expenditure (DRE), and her assessed contribution was £133.72 per week.

Subsequent financial assessments in 2018 and 2019 showed a £25 DRE disregard and Miss Y’s weekly contributions to be £119.67 and £124.57.

The Council told the LGO that it was because Mrs X did not provide information about additional DRE that it applied a standard allowance of £25 for DRE. Mrs X said that in 2016 she did not know that the cost of activities could be offset as DRE, but now that she was aware she could provide evidence of DRE. DRE should be considered within a financial assessment, but Mrs X highlighted that during the 2017 assessment, she was not asked about any DRE, and she did not receive a letter stating the outcome.

She began receiving invoices from the Council after the September 2017 financial assessment, which she refused to pay.

The Council said that Miss Y had accrued a substantial debt since April 2017; £113.72 a week until 2018; £119.67 a week until 2019; and £124.97 until 2020.

Mrs X complained that Miss Y could not afford the assessed contribution, and that paying this would significantly reduce her quality of life as she would be unable to participate in community activities, which were identified as an eligible need.

The Council acknowledged that activities such as horse-riding were “necessary due to her disabilities…”, and could likely be included as DRE. A needs assessment the Council started in February 2019 stated that “Making use of necessary facilities or services in the local community” were recorded as eligible needs, and noted that “[Mrs X] supports her daughter with involved activities in the week eg horse riding”. However it maintained that it needed further information from Mrs X.

What was found

Firstly, the Council’s failure to explain why they stopped DPs which funded activities assessed as an eligible need without notice was fault.

The Council told the LGO that the DP stopped because Miss Y transferred to adult services and it had no guidance on what the payments could be used for. The Care & Support Statutory Guidance 12.34 states, “The direct payment is designed to be used flexibly and innovatively and there should be no unreasonable restriction placed on the use of the payment, as long as it is being used to meet eligible care and support needs”. In this case horse-riding and other activities met an identified eligible need. The LGO emphasised that there was no good reason for the Council stopping the payments. It acted contrary to the Care Act.

After the DPs stopped, the Council failed to include the cost of activities in a financial assessment completed in 2017. It allowed Miss Y an arbitrary DRE disregard of £25 per week because Mrs X did not provide information about additional DRE expenses. The LGO stated that the Council cannot expect citizens to understand the process. This was particularly relevant in this case, because Miss Y was new to adult services. Furthermore, the Council knew Miss Y attended community activities, so it did not need Mrs X to provide this information. The Council should have offset the costs as DRE, if the costs were not themselves IN the package/budget in the first place.

The LGO concluded that Councils should always consider individual circumstances and consider everything a person has to buy or pay for because of their disability. In this case it did not do so. This was fault.

The LGO recommended that the Council:

  • provide Mrs X with a written apology and pay her £250 for the time and trouble she went to bringing the complaint
  • develop a care plan for Miss Y setting out all her needs and how these will be met;
  • undertake a fresh financial assessment of Miss Y and consider all DRE in accordance with statutory guidance;
  • establish how much Miss Y spent funding any activities identified as an eligible need since 2016, and reimburse her in full for the effect that that would have had on its charges;
  • establish if, and how much, Mrs X has contributed towards Miss Y’s activities identified as an eligible need and reimburse her in full.
  • consider if other service users may be similarly affected, and take appropriate action;
  • ensure officers undertaking financial assessments and decision-makers act in accordance with statutory guidance.

Points for the public, service users, family and peer supporters, advocates, and councils etc

This Council’s systemic failures gave rise to this complaint. Without a Transitions Service, (whether staffed by adults’ or children’s services social workers) how any council can expect to discharge the difficult functions regarding ordinary residence for adults’ services, questions of mental capacity, once adult, questions about transition assessments which are a virtual statutory right under s58 Care Act, is beyond us.

The law and guidance require councils’ Children’s Services to continue to fund children’s services, if adult services is not ready to take over; not to start funding adult services!

Adult services then made an assumption that a need outlined in a children’s services assessment could and should be met by the person through their welfare benefits. This has long been outlawed by the LGO service. One can choose to but one does not have to. Non-care services such as leisure can be charged at full cost if in the package, regardless of the impact on the MIG, to incentivise one to do so, in which case it would almost always qualify as DRE. But one cannot be made to pay for one’s own needs out of one’s own money!

Stopping a Direct Payment without an explanation is clear breach of the Care Act. Changing the care plan without a proper review and revision process is a clear breach of the Care Act (section 27).

The Department of Health Statutory Guidance (12.68) sets out clearly what Councils should consider  in relation to the cessation of a direct payment:

12.68 ‘If terminating a direct payment, the local authority must ensure there is no gap in the provision of care support. Where a decision has been made to terminate a direct payment, the local authority should conduct a revision of the care and support plan, or support plan, to ensure that the plan is appropriate to meet the needs in question’.

In Miss Y’s situation, to be able to continue to access the activities such as horse-riding that had been recognised in on-going assessment as meeting her needs, she was forced by the cessation of the direct payment to pay for her own activities. This will have impacted on the monies available to her for other aspects of her life. The Council had assessed her need and were responsible for meeting it unless or until s27 had been complied with. The purpose of the financial assessment process would have established what contribution if any Miss Y was required to make towards the cost of her care services.

The financial assessment process also failed to ask about any Disability Related Expenditure (DRE) incurred by Miss Y in meeting her needs. The Department of Health Statutory Guidance paragraph 39 further sets out that:

‘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’.

The Council failed to ask about DRE (a wheeze that we see a lot of at CASCAIDr) and on completing its financial assessment applied an arbitrary figure of £25 based on the fact that no DRE information had been provided. The Council had expected Miss Y and her mother to know that DRE even existed! We would not be surprised if the LGO had gone the other way on that point because someone’s appointee owes a duty to keep themselves informed in order to manage benefits, but we are happy that the LGO thinks it unreasonable.

DRE can include a lot of aspects of a person’s care and support and there are no specific rules as to what definitely is or is not DRE but the Statutory Guidance prompts Councils at paragraph 40 with a long list of considerations, which includes day care which is not being arranged by the Council.

Since Miss Y’s direct payments had ceased, her expenditure on day activities (albeit wrongly happening) ought to have been taken into account as it was, at that time, not being funded by the Council.

The LGSCO has demonstrated here how it can require Councils to pay out in restitution for expenditure a person has incurred, from the saving of which the Council thought it had gained a benefit. The Council was responsible at that time for meeting the assessed needs, therefore should not have required Miss Y to fund this herself and acted in line with its responsibilities to meet assessed needs under the Care Act 2014. We heartily approve of the LGO extending that principle to monies spent by the parent from her own money. In the good old days, before even Fairer Charging policy, it was regarded that money extended to an incapacitated adult by a parent was not a gift, but a loan which required to be reimbursed – a principle for which the Mental Capacity Act now makes statutory provision in s7 and 8(2).

7 Payment for necessary goods and services

(1) If necessary goods or services are supplied to a person who lacks capacity to contract for the supply, he must pay a reasonable price for them.

(2) “Necessary” means suitable to a person’s condition in life and to his actual requirements at the time when the goods or services are supplied.

8(2) If the expenditure is borne for P by D, it is lawful for D—

(a) to reimburse himself out of money in P’s possession, or

(b) to be otherwise indemnified by P.

We think that many Councils have whittled away at that approach, by lumping all such expenditure under the heading of “assets and strengths”!

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 Cheshire West and Cheshire Council’s actions can be found here