Durham Council at fault for failing to offer appropriate remedy after an officer made inappropriate comments

Decision Date: 24th November 2020

What Happened

Mr X complained on behalf of his grandmother, Mrs Y, who lived at home with him. 

Mrs Y received direct payments from the Council, and also contributed personally to her care. 

In May 2020 Mr X asked the Council to consider telephone and internet costs as disability related expenditure (DRE). He said that Mrs Y’s landline was essential for her telecare alarm system and allowed her to manage her online banking and shopping. 

The Council responded a month later stating “There is no evidence that the landline / mobile phone or internet are specifically required due to [Mrs Y’s] disability, and these appear to be for everyday usage, the same as the general population”.

Attached to this email (presumably mistakenly), were all the other email communication between officers discussing Mr X’s previous DRE requests. These emails contained personal comments about Mr X and his mental health. 

Mr X was extremely distressed by the emails and complained to the Council. He said that he believed that the officers’ comments were discriminatory, exacerbated his mental health issues and had unduly influenced the DRE decision. Finally, he said that the officers’ comments amounted to a breach of the Data Protection Act.

The Council responded to Mr X and stated that:

  • the DRE request had been reviewed by a manager who concluded that the correct process had been followed and that the decision was correct.
  • there was no evidence to suggest the request had been treated less favourably because of the comments made about Mr X’s mental health.
  • The comments made by officers had “…no place in the Council’s consideration of matters linked to your grandmother”, that the comments were unprofessional and unwarranted, and that “..officers had failed to comply with their duties in processing your personal data resulting in a breach of data protection legislation”.
  • apologised to Mr X saying she “unreservedly and unequivocally apologised on behalf of the Council for the actions of officers in making unprofessional and unwarranted comments” and said the matter would be dealt with accordingly by a senior officer.
  • refused Mr X’s request for financial compensation for the data breach saying, there had been no monetary loss on his part.

Mr X remained unhappy and complained to the LGO. 

What was found

The LGO stated that the Council has some discretion about what it considers as DRE. At the time of installation, Mrs Y’s support plan did not identify a need for the equipment, it was installed at her request. However, subsequent reviews found the telecare service to be an eligible need, so the Council allowed the cost of the alarm to be considered as DRE. However, because the landline was in place before the alarm system, the landline cost was not included as DRE. The LGO stated that as the Council considered the DRE request in accordance with the guidance, there was no fault in its decision

The LGO stated that although the officers’ comments in the email string were inexcusable, and led Mr X to believe he was being discriminated against, this was not actually the case. The comments did not influence the decision on DREs. 

The LGO stated that although the Council apologised for its officer’s comments, it refused to offer monetary payment. The LGO recommended that the Council offer a symbolic payment to acknowledge the impact its officers’ actions had had on Mr X of £300. 

Points to note for councils, professionals, people who use services and their carers, advocacy groups and members of the public

The LGO did not find fault with the way in which the land-line was considered as part of the Disability-related expenditure request for an income disregard. Councils do have discretion and in our view this is applied in variable ways by councils but here is what the Care and Support Statutory guidance says about this at paragraphs 40 and 41:

In assessing disability-related expenditure, local authorities should include the following. However, it should also be noted that the list in the Guidance is not intended to be exhaustive and any reasonable additional costs directly related to a person’s disability should be included.

41) The care plan may be a good starting point for considering what is necessary disability-related expenditure. However, flexibility is needed. What is disability-related expenditure should not be limited to what is necessary for care and support. For example, above average heating costs should be considered. 

What this does not help people with very much at all is a scenario where a person has an existing financial commitment, i.e. a land-line that underpins and is essential to enable the technology-enabled care. It appears to focus on new costs or costs over and above the costs that non-disabled people incur in order to have a landline in the first place. There isn’t any culture of allowing a percentage of an ordinary level expenditure because of the fact that it helps manage disability related needs. We don’t think that the law is that this person could terminate their landline and then have a new one and claim the whole of that as DRE. 

Oddly, the LGSCO makes reference to the following definition and imputes it to the Department of Health but it does not in fact appear in the current guidance at all. We suspect it is from NAFAO or from para 44 of pre-Care Act Charging Guidance (Fairer Charging) from pre-Care Act:

 “items where the user has little or no choice other than to incur the expenditure in order to maintain independence or quality of life”. 

As for the comments made between council officers, this led Mr X to view the decision regarding DRE as discriminatory. Whilst an appalling display of poor conduct, the LGSCO was satisfied that the comments had not prejudiced the decision-making. This is where the LGO can be really helpful in investigating the actions of a council. Initially a financial payment was refused by the council as it claimed there had been no loss, but with a prompt from the LGO also had to pay Mr X to acknowledge the impact of the fault. 

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 Durham County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/20-001-398

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