Summary: Ms X complains about the Council’s actions regarding a financial assessment relating to her care provision. She says the Council did not make appropriate reasonable adjustments to take her disabilities into account and incorrectly calculated her financial contributions. Ms X says the Council’s actions led to delays in the process and caused her unnecessary distress and confusion. We find some fault in this matter and the Council has agreed a remedy to address the injustice to Ms X.

The complaint

1. Ms X says the Council carried out a financial assessment in January 2019 relating to her care provision. Ms X complained that:
1. The Council’s financial assessment under the Care Act was carried out without appropriate reasonable adjustment being made;
2. The Council’s calculations in January 2019 regarding the contributions towards her care package were incorrect. She says this meant she needed to significantly reduce her weekly care support;
3. The Council stopped paying its contributions for a period of six months from January 2019 to June 2019 without prior notice. She says this meant she had to reduce her care arrangements within that period;
4. The Council told her she is required to pay the contributions invoiced to her, and
5. The Council removed approximately £10,000 from her direct payment account with no adequate explanation.
2. Ms X says the Council’s actions have led to unnecessary distress, delay and confusion, particularly regarding the lack of clear, unambiguous communication.
3. Ms X also complained the Council delayed calculating the contribution amount and failed to undertake a review of its policies following a previous complaint.

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What I have investigated

4. I have investigated the complaints listed at paragraph 1. The final section of this statement contains my reasons for not investigating the complaints listed at paragraph 3.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

8. I have read and considered the information about the complaint provided by Ms X.
9. I have made enquiries to the Council and considered the information it provided.
10. Ms X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

The law and statutory guidance

11. The Council has a duty under the Care Act 2014 to provide a care and support plan for a person who has eligible social care needs. It must write a care and support plan that explains how to meet the person’s eligible care needs. The care and support plan may include a personal budget. This is the money the Council says it will cost to cover the person’s eligible needs.
12. People can choose to have direct payments from councils to help to cover eligible care costs. Direct payments should give a person independence, choice and control by letting them arrange their own care and support to meet eligible needs.
13. Councils must check service users are using direct payments correctly. They must review them after the first six months and then every 12 months. Reviews should check people are comfortable with the arrangements and understand how to use them. Councils usually combine direct payments and care plan reviews.

Autism Act 2009 and statutory guidance

14. Statutory guidance issued under the Autism Act provides detail on the specialist knowledge and skills assessors should have. This includes being aware of the common difficulties’ people on the autism spectrum face in dealing with personal, social, educational, and work circumstances.

The Council’s direct payments policy

15. The Council published a document about personal budgets and direct payments. It says the Council provides most service users who receive direct payments with a pre-paid card. These can be used to pay for care services in the same way as a bank card.
16. The Council’s direct payments agreement says the Council may require the service user to repay to the Council the direct payments, or any part of it, if the Council is satisfied the direct payments have not been used to pay for support services.

Charging and disability related expenditure

17. Councils can make charges for care and support services they provide or arrange. Councils must assess a person’s finances to decide what contribution the person can make towards the costs of that care.
18. For a person who lives at home, councils must ensure that a person’s income is not reduced below a specified level after care charges have been deducted. The amounts are set out in the Care and Support (Charging and Assessment of Resources) Regulations and is Income Support plus an additional 25%. This must be after any disability related expenditure (DRE) has been deducted.
19. The Council’s Adult Social Care Charging and Financial Assessment Framework says:

“Service users who are in receipt of care, [….] and are in receipt of disability benefits (Attendance Allowance/Disability Living Allowance and Personal Independence Payment) will have a standard rate of DRE automatically applied to their financial assessment in recognition of their disability. The service user will also be invited to request a review of the DRE award within the assessment notification letter, if they feel the standard rate does not meet their current needs” (Appendix E, 5.1).

20. The document also says:

“… individual circumstances are taken into account, and reasonableness is applied during the financial assessment determination process based on the information and evidence provided” Appendix E, 5.3

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What happened

21. Ms X has several health conditions and Autism Spectrum Disorder (ASD). In September 2018, Ms X had an operation. She says the Council advised her to take part in an assessment to arrange carers to support her when she returned home from hospital. Ms X agreed and in October 2018, the Council carried out a financial assessment to decide what contribution Ms X should make towards the costs of her care.

The financial assessment and direct payment agreement

22. The Council wrote to Ms X in October 2018 and told her she did not need to pay a contribution, based on her financial circumstances at that time. The Council did not include any DRE as part of the assessment. It also told Ms X she may be entitled to Personal Independence Payment (PIP) and advised her to contact the Department for Work and Pensions (DWP) about this. The Council said it would check with the DWP in a month’s time to see if Ms X was awarded PIP. Ms X had received PIP before the financial assessment in October 2018, but this was suspended at the time because of an appeal.
23. In November 2018, Ms X requested the assistance of an advocate who helped her to apply for direct payments. Ms X signed a direct payment agreement which meant that payments for her care could be made to her direct payment account.
24. Later that month, the Council wrote to Ms X and reminded her she could apply for PIP. Ms X says PIP was reinstated in November 2018.
25. In January 2019, Ms X says she told the Council she was receiving PIP. The Council wrote to Ms X and said it had reviewed the information and evidence she had provided. The Council said that based on the cost of the service she received, Ms X was required to pay £86.80 per week towards the cost of her care. The Council provided a letter showing a breakdown of its assessment, including PIP. The letter also showed the Council had accepted some elements of DRE in the assessment. Ms X complained to the Council that the assessment did not accept all her DRE. She says she was unable to pay the top-up for her care charges.
26. In January 2019, the Council wrote to Ms X. It said Ms X could provide details and proof of DRE if the expenses were not covered by the care package. The Council said it would assess each application for DRE on its own merit.
27. That same month, Ms X complained to the Council via an advocate. Ms X complained the Council had not considered her DRE as part of the assessment.
28. Ms X also complained the Council had not been clear and transparent in dealing with her financial assessment. She said the Council had a duty under the Autism Act to consider her needs and to make reasonable adjustments, particularly relating to sudden changes which could overwhelm or distress her. Ms X said the Council should provide time for her to provide evidence of her DRE.
29. The Council replied in March 2019. It said Ms X’s financial assessment was reassessed because she was receiving PIP. The Council said this meant Ms X was assessed as being able to contribute towards the cost of her care package for the first time.
30. The Council said it considered it reasonable to adjust Ms X’s financial assessment from the point it identified the additional income, rather than backdating its reassessment to November 2017.

Disability related expenditure

31. The Council said it would amend the direct payment funding so that it was paid without deducting Ms X’s assessed charge. Instead, as an interim measure, it said it would pay the full amount of the care costs and raise invoices to Ms X for her assessed weekly charge while she continued to gather and produce the evidence of her DRE.
32. The Council began invoicing Ms X in April 2019.
33. Ms X provided evidence of her DRE throughout May 2019.
34. In June 2019, the Council wrote to Ms X and told her which items of DRE it accepted. It said Ms X was required to pay £86.80 per week from January 2019, increasing to £89.55 per week from April 2019. The Council said Ms X could provide further evidence of DRE if she disagreed with the assessment.
35. In August 2019, the Council wrote to Ms X via her advocate in response to her complaint. It said it had considered Ms X’s communication difficulties and decided not to backdate the financial assessment to November 2017. The Council said it had made reasonable adjustments by doing this and by allowing additional time for Ms X to provide evidence of her DRE. It said it had made further reasonable adjustments by amending its funding so that direct payments were made without the deduction of Ms X’s contribution.
36. The Council said it would accept additional evidence of DRE but said it remained likely Ms X would need to make some contribution based on her income. It said it would backdate any reduction in her contribution amount resulting from a further reassessment.
37. The Council told Ms X she would still need to contribute even if she reduced the level and/or number of hours of care. This was because the contributions were based on Ms X’s income and allowable expenditure, not on the amount spent on care.
38. In September 2019, the Council told Ms X it intended to recoup £5,785.24 of unspent funds from her direct payment account.
39. Ms X’s solicitor wrote to the Council in October 2019 and said Ms X did not consider the Council had taken sufficient account of her DRE. The solicitor resubmitted receipts as evidence of DRE and said Ms X would not pay any contributions until the Council reviewed the financial assessment.
40. The Council replied in October 2019 and said it would review Ms X’s DRE again. It also recouped the amount of £5,785.24 from Ms X’s direct payment account.
41. In November 2019, the Council told Ms X’s solicitors it had reviewed her DRE and provided an explanation of which items had been accepted. The revised financial assessment meant Ms X was still required to contribute, although the weekly amount was reduced.
42. In December 2019, the Council told Ms X’s solicitor that any further requests for DRE must be supported by proof of income and expenditure. It agreed to provide a one-month extension for Ms X to provide this information.
43. Ms X remained unhappy with the Council’s response and brought her complaint to us.

What happened next

44. In January 2020, the Council told Ms X it intended to recoup £1,573.30 from her direct payment account. Later the same month, the Council recouped this amount.
45. In March 2020, Ms X provided additional medical evidence to the Council via her solicitor. She asked the Council to review her financial assessment again because she felt her assessed contribution was too high.
46. The Council wrote to Ms X via her solicitors in April 2020 and provided a revised financial assessment which further reduced Ms X’s weekly charge.
47. Ms X told the Council in September 2020 she had no further instructions for her solicitor regarding the financial assessment. Ms X asked for a revised invoice for her contributions.

Analysis

48. I have exercised discretion in investigating Ms X’s complaint back to October 2018. This is because the financial assessment process began in October 2018 and the complaint relates to the Council’s actions regarding this matter.

Reasonable adjustments made when considering the financial assessment

49. The Council says it was not initially aware Ms X required reasonable adjustments, but once it was aware, it made reasonable adjustments. It says it agreed to contact Ms X via her advocates and allowed extra time for her to provide evidence of her DRE.
50. I acknowledge the Council did provide extra time for Ms X to provide evidence of her DRE and contacted Ms X via her advocates and solicitor. However, I do not accept the Council was unaware of Ms X’s potential need for reasonable adjustments when it carried out the financial assessment in October 2018. The Council was aware of Ms X’s diagnosis of autism and the additional needs associated with this diagnosis in May 2018. This is evidenced by a previous, separate complaint made by Ms X.
51. Ms X says the Council failed to consider its duties under the Autism Act 2009. She says the Council did not consider providing reasonable adjustments relating to sudden changes which may overwhelm and distress her. She also says the process was not clear and transparent as required by the Care Act statutory guidance.
52. The statutory guidance for Local Authorities to support implementation of the Adult Autism Strategy, published in March 2015 refers to reasonable adjustments. Paragraph 6.4 says “For clarification, the reasonableness or otherwise of an adjustment depends on the consideration of how effective the change will be in assisting disabled people in general or a particular service user, whether it can actually be done, its cost and the organisation’s resources and size”.
53. I find no fault in the Council’s explanation of how it calculated the care charges. And I find no fault in how it made reasonable adjustments to provide additional time to Ms X to provide evidence of DRE, or to communicate via her advocates and/or solicitor.
54. However, I consider the Council did not make reasonable adjustments to consider Ms X’s autism when it advised her she could apply for PIP. It was aware of Ms X’s diagnosis of autism, and of the additional needs associated with this diagnosis. On this basis, I consider the Council should have told Ms X that if she received an additional income from PIP, this may affect the financial assessment and may result in her having to contribute to the cost of her care provision. This would have provided a clearer, more transparent picture to Ms X. This would also have reduced the potential for a sudden change to the financial assessment, which Ms X found overwhelming. Having consideration of the statutory guidance previously referred to, I consider this adjustment was reasonable and within the Council’s ability to provide.
55. It is positive and correct that the Council told Ms X she may be entitled to PIP, but I have seen no evidence the Council explained that the financial assessment may change as a result. I consider this lack of a reasonable adjustment constitutes fault by the Council.

The Council’s calculations in January 2019

56. I do not consider there is evidence the Council’s calculations in January 2019 were incorrect. The letter dated 7 January 2019 explained how the Council considered Ms X’s income and expenditure and how it considered her DRE at that time.
57. I acknowledge Ms X disagreed with the amount of DRE the Council initially accepted as eligible and re-submitted evidence of her DRE for the Council to reconsider. The Council reconsidered this and amended the DRE calculation. Whilst I acknowledge the calculation changed as a result, I do not consider this is evidence of fault by the Council. It calculated Ms X’s contribution based on the information provided to it. Although it reviewed this information and amended its assessment, this was after further clarification of Ms X’s need for certain items and the reasons for the DRE was provided. Consequently, items which were previously rejected as DRE were, on review, accepted.
58. I acknowledge Ms X may consider the initial calculation to be incorrect because it later accepted some elements of DRE which were initially rejected. However, I do not consider this to be fault. It told Ms X it would consider further evidence if she disagreed with the calculation. Ms X did disagree, and the Council reconsidered as it said it would. The resulting change regarding the accepted DRE is not evidence of fault in the initial calculation but is evidence the Council reconsidered Ms X’s explanation of her expenditure.
59. Ms X says the Council should have paid the full amount of her care costs while she disputed the amount of DRE accepted by the Council. She says although the Council did revert to paying the full amount following her complaint in January 2019, it should not have reduced its contributions until all DRE had been properly considered. Ms X says the Council was unreasonable in doing so and did not follow the Care Act statutory guidance.
60. The statutory guidance does not specify that Council’s must pay the full cost of care charges while it considers DRE. I acknowledge Ms X’s comments regarding this but find no fault regarding this aspect of the complaint.

The Council’s contributions from January 2019 to June 2019

61. I have seen no evidence the Council stopped paying its contributions from January 2019 to June 2019. The Council has provided evidence of the amounts credited to Ms X’s direct payment account, and the dates of the credits.
62. The evidence shows an initial payment to Ms X’s account of £1,966.91 for the period 13 November 2018 to 11 December 2018 and then 17 December 2018 to 13 January 2019. There are no periods where the Council stopped making payments, although it did pay a reduced amount for the period January to May 2019.
63. The Council says the figures for this period are lower than later credits because at this time, payments were being made minus the adjustment for Ms X’s contribution. After May 2019, credits were inclusive of contributions. The Council raised invoices from this point.
64. The initial payment was greater than later payments because it was for the period when Ms X was not required to pay a contribution. Subsequent payments were made after the financial assessment had determined Ms X was required to pay a contribution, resulting in reduced payments.
65. The Council told Ms X’s advocate on 19 March 2019 it would amend the direct payment funding and remove the deduction of the assessed charge. The Council said it would raise invoices to Ms X for the weekly assessed charge instead.
66. I acknowledge Ms X says the Council stopped paying its contributions from January to June 2019, but the evidence shows payments continued at a reduced rate for this period. The Council has explained the reason for this, and this is supported by the evidence. The evidence also shows the Council told Ms X about changes to the payments and the method of how payments were to be made. As a result, I find no fault in the Council’s actions relating to this aspect of the complaint.

Payment of contributions invoiced to Ms X

67. The care and support statutory guidance says:

“8.2 - Where a local authority arranges care and support to meet a person’s needs, it may charge the adult, except where the local authority is required to arrange care and support free of charge.”

“8.3 – […] local authorities should ensure there is sufficient information and advice available in a suitable format for the person’s needs, in line with the Equality Act 2010 [….] to ensure that they or their representative are able to understand any contributions they are asked to make...”

68. The Council started to invoice Ms X in April 2019. It told Ms X’s advocate on 19 March 2019 it would do this because of Ms X’s disagreement about the level of DRE, and because Ms X wanted to provide additional evidence. The Council subsequently paid the full contribution so Ms X could continue to access the level of service she required while the DRE assessment continued. The Council explained it would invoice the PA during this process.
69. The Council carried out a financial assessment and was entitled to charge Ms X for her contributions following that assessment. It also ensured it informed Ms X’s representative about the intention to raise invoices as an alternative to making deductions from the direct payments.
70. Because the financial assessment determined that Ms X should make contributions, I find no fault in the Council informing Ms X that she should pay the contributions invoiced to her.

The amounts removed from Ms X’s direct payments account

71. I have seen a copy of the direct payment agreement signed and dated 5 November 2018. Paragraph 12 of the agreement states:

“On receipt of the Financial Returns, the Council may adjust future payments, or recover excess funds from the Direct Payments. You will be informed of any actions in this regard to ensure the correct contingencies remain available”.

72. The Council explained at the start of the direct payment agreement that it may recover excess funds from the direct payment account. The actual amount recouped is £7,358.54 recovered in two separate instalments. On both occasions, the Council wrote to Ms X’s representative beforehand to inform them it would do this.
73. The Council says the payments made to the direct payment account are for Ms X to pay for the services identified as required. If Ms X does not access the services, the payments may be recouped. This is in line with the direct payment agreement which Ms X signed and is a reasonable explanation for recouping the funds.
74. Ms X says the Council should have explained she could spend the money in her DP account and that this would not conflict with the terms of the DP agreement that she signed. Ms X says the agreement states she must not spend more than the weekly limit, so she did not know she could spend the larger sums credited to her account.
75. I acknowledge there may have been some confusion about whether Ms X could spend the funds in her DP account, and I acknowledge Ms X says this was caused by the wording of the agreement. However, I do not consider this is fault by the Council. The Council’s letter of 26 November 2018 advised Ms X to contact the DP team or a social worker about how to use the payments if necessary. I acknowledge Ms X says she could not get access to advice, but Ms X was receiving assistance from an advocate at this time.
76. The Council is permitted to recoup unspent funds from the direct payment account, and it told Ms X beforehand of its intentions to do this. I have therefore found no fault in the Council’s actions regarding this aspect of the complaint.

Injustice to Ms X

77. Having identified fault relating to point 1 of Ms X’s complaint, I must consider if this caused a significant injustice to Ms X.
78. Ms X says the lack of transparency and explanation about the financial assessment cause her unnecessary upset and distress. She says the sudden change in the Council telling her she needed to pay a contribution made her feel overwhelmed.

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Agreed actions

79. To address the injustice arising from the fault identified, the Council has agreed to take the following action:

• Provide an apology to Ms X within four weeks of the final decision;
• Make a payment of £250 to Ms X in recognition of the distress and upset caused. The payment should be made within four weeks of the final decision, and may be credited to Ms X’s direct payment account, and
• Within four weeks of the final decision, remind its financial assessment team to consider its duties under the Care Act and Autism Act. Specifically, when advising service users about potential benefit eligibility, to ensure it clearly explains the potential impact of additional income.

The Council is required to provide us with evidence it has carried out the above actions.

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Final decision

80. I have found fault by the Council and it has agreed to the above actions. I have therefore concluded my investigation.

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Parts of the complaint that I did not investigate

81. I have not investigated Ms X’s complaint that the Council delayed calculating the contribution amount and failed to undertake a review of its policies. This is because these issues relate to a later assessment and are the subject of a separate complaint. Ms X may bring these complaints to us separately if she remains unhappy with the Council’s response.

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Investigator's decision on behalf of the Ombudsman