Further to minute 23 (23 September 2009), the Chief Internal Auditor presented a report which addressed the Special Charging Policy applied to service users residing at "in house" Supported Living Units. The Committee considered the report in conjunction with the report elsewhere on the agenda of the Director of Adult Social Services ‘Charging Arrangements for Supported Living in Wirral 1997 to 2003’ (see minute 43 post).

Information had been reviewed from a number of sources including the Audit Commission's PIDA Report, Mr Morton's grievance, and documents within the Department of Adult Social Services. The Audit Commission was made aware of the documents reviewed by Internal Audit and was not aware of any additional documents relevant to the investigation. In response to a question from a Member, the Director of Law, HR and Asset Management confirmed that he had contacted Mr Morton’s solicitor, to seek the views of Mr Morton and to request his assistance in relation the audit investigation. The Director had also requested the co-operation of Mr Morton in relation to his investigation of Mr Morton’s allegation of bullying (Cabinet minute 137 (24 September 2009) refers). However, to date, no response had been received from Mr Morton, or his solicitor, in relation to either matter. A Member expressed the view that the report of the Chief Internal Auditor was incomplete without the views of Mr Morton being included within it and that its consideration should be deferred to allow time for consultation with Mr Morton to be undertaken.

In order to assess if the Special Charging Policy was "unreasonable", enquiries were made to the Directors of all northern Adult Social Services with a copy to the Chief Internal Auditors of the same Authorities concerning the charges levied by them between 1997 and 2003 for "in house" supported living service users. The format and content of the Questionnaire and letter had been agreed with the Director of Adult Social Services and the Audit Commission. Over 50 authorities were consulted from the North West, the Midlands and Yorkshire; all were given reminders, but only 11 replies had been received, all from North West Authorities. Analysis of the survey of other local authority's charges was difficult to use to make comparisons as there were only 11 survey responses. Some authorities charged on an hourly rate or a sliding scale whereas Wirral charges were based on income. Depending on the hours of care provided, some charges were comparable with Wirral's and the maximum charge of one approximated to Wirral's average for the period 1997/1998 to 2002/2003, which was £78. The approximate average for the other authorities was £45 and some of those who made comments on Wirral's charging policy were critical of the level and considered it high.

Relevant documents from the Department of Adult Social Services (DASS), e-mails and committee reports had been reviewed to ascertain if there was evidence that officers had information that could have indicated the charges were unreasonable. Further discussions and enquiries were made with DASS officers and managers and all were again open, cooperative and helpful but, inevitably, there were difficulties in remembering details and locating documents related to several years ago at a time when the Department was in “Special Measures”.

The Chief Internal Auditor set out the chronology of events that led to a special charging policy being implemented for service users at Supported Living Units at Bermuda Road, Curlew Way and Edgehill Road between 1997 and 2003. This was in accordance with a decision of the Social Services Committee held on 3 September 1997 (minute 31 refers). A subsequent report entitled “Charging Policy Review” presented to a special meeting of the Social Services Committee on 26 July 2000 to inform Members of the outcome of the consultation exercise on proposed changes to the charging policy for non-residential services stated that service users who resided in Supported Living Accommodation were not included under the proposed Policy. The report went on to make clear that a further report would be submitted to the Adult Community Care Panel and Social Services Committee outlining charging arrangements for that client group. However, no evidence had been discovered that a further report was produced and submitted. It was clear from an e-mail and other correspondence that officers were aware that a further committee report was needed. It was also clear that Mr Morton had brought the issues to the attention of officers within the Department in 2001.

He commented upon an analysis of the charges levied on all the service users who lived at Bermuda Road, Curlew Way and Edgehill Road from 1997 to 2003. The charges depended upon the service users' benefits, in accordance with the policy approved by Social Services Committee on 3 September 1997. The records reviewed indicated that the average financial assessment charge for the period was £77.70 – the range being from an average of £63.33 in 1997/1998 to an average of £83.82 in 2002/2003. This left an average amount over the period for the service users own use of £97.42; ranging from £89.02 in 1997/1998 to £107.77 in 2002/2003. This contradicted the suggestions that all the income of supported living service users was taken as a contribution to the costs of care. It also contradicted the suggestion that charges were in excess of £100 per week. Records indicated that the average ratio of charge to service user's income over the 5 years was approximately 44 per cent.

The Chief Internal Auditor commented further that a review of service users resident in the premises in Balls Road, Birkenhead was also conducted and that no documents or records of any sort could be found that indicated that any residents were charged for care services – the only charges being in respect of rent. Anomalies were the subject of an ongoing investigation by the Director of Adult Social Services (see minute 43 post) which would be reported to Members upon conclusion.

As to whether the charges applied by the Council were unreasonable and therefore, unlawful, the Chief Internal Auditor referred to the Audit Commission Report “Charging with Care” of May 2000. That report (in Section 45, page 25) commented on the definition of ‘reasonableness’, which was crucial to determining legality of charging. The report stated that “provided that decisions over the principles related to charging are properly debated and resolved then the resultant approach can be considered to be ‘reasonable’". The special charging policy applied to residents of Bermuda Road, Curlew Way and Edgehill Road from 1997 onwards was in line with the decision of the Social Services Committee on 3 September 1997. Consequently it was, therefore, reasonable and lawful at that time and, until the time when Fairer Charging should have been implemented, in April 2003, it might have remained reasonable and lawful.

Analysis of the documentary evidence indicated that in October 2000, some officers were aware the charges were not in accordance with best practice, by virtue of not having been reported to Members in accordance with a previously reported intention. Furthermore, on 6 April 2001, they were in receipt of an evidenced recommendation from the Supported Living Development Officer (Mr Morton) that the charges should cease.

Had the Policy for Supported Living been reviewed in accordance with paragraph 4.24 of the Special Social Services Committee report of 26 July 2000, Members might have implemented the wider departmental charging policy to "in house" Supported Living, albeit this could not be known for certain. However, if it had been so decided, then Members today might wish to extend reimbursement back to 4 December 2000 (when the other charges approved by the Special Social Services Committee on 26 July 2000 came into effect). If so, the reimbursement for the 16 service users who were affected during the period 4 December 2000 to 31 March 2003 had been calculated to total £127,700. The Chief Internal Auditor commented that any reimbursement of excess charge would require Cabinet approval. If the funding could not be met from within existing resources, it would also require Council approval and he recommended that the cost of any reimbursement or other action be funded from the Department of Adult Social Service's Revenue Budget.

A Member indicated that Mr Morton believed that the internal audit investigation had failed to consider a report to the Social Services Committee in 1999 and he requested clarification with regard to whether a file related to the special charging policy had been considered as part of the investigation. With regard to the Special Meeting of the Social Services Committee in 1999, the Director of Law, HR and Asset Management confirmed that it had been referred to in the report to the special meeting of the Committee held on 23 September 2009 – as such, it formed part of the evidence base. The Director believed that all items relevant to the charging policy had been included in the review and confirmed that Mr Morton had been invited on a number of occasions to provide any evidence in his possession. However, if there was any further evidence it should now be produced.

Councillor Mountney then requested that the Committee adjourn.

The Committee stood adjourned for 20 minutes.

With the agreement of Councillor Mountney, the Director of Law, HR and Asset Management advised the Committee that during the adjournment, Councillor Mountney had spoken with officers and been reassured in relation to a number of detailed questions, particularly with regard to what evidence had been provided to internal audit and by whom. Councillor Mountney commented that he had also spoken with Mr Morton, who had confirmed that he was prepared to make a final statement through his solicitor to a future meeting of the Committee. He expressed the view that consideration of the internal audit report and the report of the Director of Adult Social Services on Charging Arrangements for Supported Living in Wirral 1997 - 2003 should be deferred to a future meeting, to be considered in conjunction with the statement to be provided by Mr Morton.

On a motion by Councillor Abbey and seconded by Councillor Fraser, it was –

Resolved –

(1)  That consideration of this matter be deferred and an update be presented to the scheduled meeting of the Committee on 25 November 2009.

(2)  That, if a response from Mr Morton is not received in time for it to be included in the update report, a further special meeting be arranged to take place no later than the end of the 2009 calendar year.