Complaint about the Disability and Carers Service (now the Pension, Disability and Carers Service) of the Department for Work and Pensions
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Decision to reduce disability living allowance award taken without proper consideration of all the relevant facts
Background to the complaint
Following a stroke in 1998, Mrs N received the highest rate care and higher rate mobility components of disability living allowance from September 1999. The award was made on the basis that she needed assistance during the day and help with going to the toilet at night.
In October 2004 Mrs N completed a form to renew her award from March 2005. Mrs N said that, periodically, she had epileptic fits, and that five nights a week she needed help with going to the toilet once a night. She also said that seven nights a week she needed help turning in bed and changing her sheets or night clothes. The Disability and Carers Service asked Medical Services to assess Mrs N’s mobility and care needs. The doctor examined her in October. He was asked to write down on the form what Mrs N had told him in her own words. He said that she told him ‘I move from room to room with the above said wheelchair’ and ‘Sometimes if I can’t wt for someone to come & help me to go to toilet I try to move a bit to micturate near the toilet…’ (pass urine near the toilet) and ‘I am not incontinent’. He wrote that Mrs N told him that at night-time she needed watching in case she got epileptic fits, but needed no help with toilet needs; and that she was mentally competent, and could not do anything for herself. He listed the medication that Mrs N took, but not how often she had to take it. Nor did he say when Mrs N had last fallen, a question to which he was asked to respond. The doctor wrote that, in his opinion, Mrs N could not turn over, or move position in bed and that, although she needed help with her toilet needs at night, she did not require such help or help for any other purpose.
In December 2004 a decision-maker considered Mrs N’s application, awarded her middle rate care component and refused the highest rate because: ‘Although I accept that Mrs N has epilepsy and sometimes experiences a fit during the night, I do not consider that she would be at substantial risk of danger as she would be in her bed’. Mrs N was notified of the decision and her appeal rights. Mrs N’s daughter (Ms E) told us that her mother did not appeal because she had entrusted supervision of her financial affairs to her (Ms E). She had set up a bank account specifically to deal with her mother’s benefits and care-related bills, and provided that the account was in credit she did not inspect the entries thoroughly. Ms E said that at the time the decision letter had been sent, she had been working abroad regularly.
In the summer of 2006 the Independent Living Funds (which provide grants to help severely disabled people to live in the community) told Ms E that her mother’s funding had to stop because Mrs N no longer received the highest rate care component. On 19 June Ms E asked the Disability and Carers Service to look again at her mother’s award, and they sent Mrs N a form to complete. She noted on the form that she needed help with going to the toilet once a night, five nights a week; and additional help, once a night, five times a week. A decision-maker assessed that Mrs N’s help with going to the toilet amounted to prolonged attention and awarded the highest rate care component and the higher rate mobility component from 19 June 2006, but refused to backdate the award as Mrs N had not notified them within one month of the ‘change’ in her circumstances.
On 4 September 2006 Ms E appealed against the decision not to backdate her mother’s award. She said that Mrs N’s condition would not go away, that she had always needed help at night and that she (Ms E) would have accepted responsibility for the reduction in her mother’s benefit were the Independent Living Funds not asking for £8,845 to be repaid. She enclosed a letter from her mother’s GP saying that: ‘Over the years Mrs N has gradually deteriorated and has required 24 hour care … this care has been extended to night time cover, essentially as she is progressively incontinent’. The Disability and Carers Service told Ms E that they could not review the December 2004 decision because the time limit for appeals had expired.
What we investigated
In October 2006 Ms E complained on her mother’s behalf to the Ombudsman that the Disability and Carers Service had not taken into account all relevant factors when reducing her disability living allowance. As a consequence, she believed her mother was not receiving her proper entitlement. Moreover, the Independent Living Funds were seeking repayment of a substantial sum of money.
We investigated the way in which the decision was taken to reduce Mrs N’s disability living allowance award.
What our investigation found
There were significant shortcomings in the way that the decision to reduce Mrs N’s disability living allowance was taken. The Disability and Carers Service failed to recognise that the medical report provided by Medical Services was clearly not fit for purpose: it was not free of medical jargon, and attributed to Mrs N an expression – ‘to micturate’ – it seems unlikely she would have used; it was illegible in parts; the doctor had not fully answered all the questions he had been asked; and it included unexplained inconsistencies in the assessment of Mrs N’s needs. Despite all this, the report was not referred back to Medical Services for rework as procedures require. As a result the decision-maker had inadequate and incomplete information on which to make a decision, and failed to take all relevant facts into account when doing so.
The decision was made solely in relation to whether Mrs N was in substantial danger at night. But another relevant criterion for night-time needs for the highest rate care component is whether the person needs prolonged or repeated attention in connection with their bodily functions. That was patently relevant to Mrs N’s situation (and was the basis of her 1999 award). Her difficulties were the result of a stroke, where the advice available to decision-makers is that someone’s condition is unlikely to improve a year after the event. Crucially, the issue of night-time needs for help with bodily functions was clearly stated in Mrs N’s application and covered in the medical report. We found no evidence that any consideration was given to these relevant facts.
One of the Principles of Good Administration is ‘Getting it right’, which includes an expectation that public bodies should, among other things, follow their own policies and procedural guidance and make proper decisions, giving due weight to all relevant considerations. In this case, the failure to send back the medical report for rework, together with the failure to take into account all relevant facts in coming to the decision, fell so far short of reasonable expectations that it amounted to maladministration.
‘Putting things right’, including putting mistakes right quickly and effectively, is another of the Principles. The Disability and Carers Service missed an opportunity to put matters right when Mrs N appealed against the decision not to backdate the new award. Although Mrs N did not specifically ask for the matter to be looked at on the grounds of official error, there are good grounds for officers to have recognised the possibility of such an error and to have addressed it. By that time, Mrs N was considered eligible for the highest rate care component from June 2006 on much the same grounds as in 1999. This, together with the contents of the GP’s letter, should have suggested strongly that the December 2004 decision might need reviewing. This, too, was maladministration.
The injustice flowing from the above maladministration was that Ms E suffered worry and uncertainty, while Mrs N was denied a proper consideration of her application.
We concluded the investigation in August 2007 and upheld Ms E’s complaint.
Outcome
At our recommendation the Disability and Carers Service:
- apologised to Ms E and her mother;
- retook the decision of December 2004 in the light of all the relevant facts (they subsequently awarded Mrs N the highest rate care component from 16 March 2005, and paid her arrears of £1,326.40 and £89.79 interest); and
- awarded £100 compensation to Mrs N and £250 to Ms E.
Principles of Good Administration
The following Principles of Good Administration were referred to in this case summary:
- ‘Getting it right’ (acting in accordance with the public body’s policy and guidance – published or internal).
- ‘Putting things right’ (putting mistakes right quickly and effectively).
