London Borough of Tower Hamlets at fault for failing adequately to consider appeals relating to disability related expenditure

Decision Date: 18/03/ 2020 

What Happened

Mr Y complained on behalf of Ms X. The LGO report did not state the relationship between the two. 

Ms X had been receiving direct payments for home care. In October 2017 the Council carried out a financial assessment and concluded that she should contribute £66.26 per week towards her care. In this assessment, Ms X stated that her only disability related expenditure (DRE) was that she used a taxi card. The report does not indicate what information Ms X was given in advance of the assessment. 

After she was told the amount she should contribute to her care, Ms X appealed against the decision, and listed numerous additional items she wanted to be taken into account as DRE. 

The Council carried out another charging assessment at the end of 2017, and found that her contribution level should not change. 

Again, Ms X appealed in January 2018. She listed the DREs she wanted to claim and the expenditure for each one. These included a special diet (as she had diabetes), supplements, special footwear and a special mattress. The list also included travel expenses.

In March 2018 the Council reassessed Ms X’s DREs, and allowed for an additional £5 per week. This reduced her contribution to £61.26, backdated to the end of 2017. This financial assessment did not include details of which DREs the Council allowed, and the LGO deduced that the Council did not include travel expenses as a DRE. 

Ms X appealed the decision once more. 

In May 2018 the Council carried out another reassessment, and this time allowed for £28.12 in DREs (for Ms X’s shoes, dietary needs and mattress). Ms X’s contribution was therefore reduced to £38.14 per week.

Ms X asked the Council why it did not regard travel and dietary supplements as DREs, and in June Mr Y provided additional evidence to the Council regarding expenditure on dietary supplements. The Council responded with a further financial assessment in August and allowed a further £10 a week for her dietary needs, reducing her contribution to £28.14 per week, backdated to October 2017. 

Every time the Council reassessed Ms X, it suspended its invoices.The LGSCO did not focus on whether the Council wrote to Ms X to inform her that a debt was accruing, nor is there evidence that it proposed she commence making a nominal payment.  Therefore Ms X did not pay a contribution during those times, so accrued arrears of over £1400. Ms X appealed and asked the Council to waive the arrears.

The Council’s appeal panel decided not to waive the arrears. Ms X was advised to contact the Council’s debt recovery team to arrange a repayment plan. 

Ms X complained that the Council took too long to complete the reassessments, which the Council accepted and offered a payment of £100. 

What was found

The LGO considered that the Council did not give adequate consideration to Ms X’s appeal and request for DREs in January 2018. This was fault. It could have requested more information regarding the DREs she was requesting at that point, rather than in May 2018. 

This fault caused an unnecessary delay in reaching a decision on the DREs. This delay caused Ms X uncertainty in knowing what her contribution would be, and time and trouble bringing the complaint. The LGO recommended a further £100 payment on top of what the Council had already offered. 

The LGO did not consider that the Council should waive her arrears, because she would always have had to contribute to her care, regardless of the delay. 

The LGO recommended the Council apologise to Ms X and take £200 off her arrears in order to reduce them. 

It was also told to review its procedures for considering requests for DREs to ensure officers give adequate consideration to requests, including promptly seeking any additional information required, to avoid the delays experienced by Ms X. 

The Council should also ensure it keeps proper records of its decisions on DREs and reasons for those decisions. The Council should then inform the Ombudsman of the action taken to improve its practice in this area.

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

The Department of Health statutory guidance sets out factors that can be included as DRE and it can be found here:

https://www.gov.uk/government/publications/care-act-statutory-guidance/care-and-support-statutory-guidance#charging-and-financial-assessment

A key point from this complaint is that there is no appeal provided for, within the charging system, other than a complaint – hence the repeated financial assessments that took place in response to Ms X raising a complaint about the amounts she had been assessed as having to pay towards her care. 

The person in that situation either has a review of the financial assessment or makes a formal complaint, or refers the matter to the Council’s Monitoring Officer as an indication of potential judicial review proceedings regarding the decision made by the Council if there is an underlying legal challenge. It appears that this complaint reflects a situation many people might find themselves in when they have not been given information in advance about DRE and financial assessments, only to be ground down by repetitions of the same process and (potentially more mistakes) to work out what they should or should not be paying.

We think it makes sense for councils’ charging officers to take note of the hint from para 10.86 of the Care Act Guidance  that when something is disputed or challenged, it makes sense to look back – ie do a management review of the earlier parts of the process to see where one might just have gone wrong. That is what addressing a customer’s perspective is all about!

Each time the amount Ms X challenged the contribution amount, she provided no further additional information on the DRE than had already been supplied. The Council simply failed to consider all of the information she had provided, each time it assessed her financial contributions. 

The LGSCO did not recommend any financial remedy for Ms X other than £100 for the uncertainty and time and trouble for each time she had to “appeal”. This was in addition to the £100 which the Council had already offered her. The LGSCO found that since she would have had to have paid towards the cost of her care anyway, she was not financially inconvenienced because of the Council’s failings. This is an important point, which highlights that even where a council’s process creates fault, this does not mean that a person will have their contribution waived. 

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 London Borough of Tower Hamlets actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/charging/19-008-359

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