Summary: Ms X complained that the Council failed to make reasonable adjustments to enable her to engage with its adult social care service. We find the Council was at fault because it failed to consider alternatives to a face-to-face assessment. That has contributed to Ms X feeling unsupported by the Council. The Council has agreed to consider other ways of assessing Ms X’s needs and share this with her.

The complaint

1. Ms X complained the Council failed to make reasonable adjustments to enable her to engage with its adult social care service, specifically around its assessment of her disability related expenditure. In addition, she said the Council did not consider the impact on her mental health when it pursued her for money she owed.
2. Ms X feels that her previous suicide attempts could have been avoided if the Council had been more supportive and responsive to her needs when completing financial assessments and communicating its outcomes to her.
3. Ms X wants the Council to waive outstanding payments she owes the Council in recognition of the harm it has caused.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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). I have exercised my discretion to investigate Ms X’s complaint from October 2018.
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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 discussed the complaint with Ms X.
9. I made enquiries of the Council and considered its response.
10. I considered the relevant law and statutory guidance.
11. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

12. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body that carries out a public function. Its aim is that, as far as reasonably possible, people who have disabilities should have the same standard of service as non-disabled people.
13. Service providers have to consider removing or preventing obstacles to people with disabilities accessing their service. If the adjustments are reasonable, they must make them.
14. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.

Care needs assessments

15. The Care Act 2014 states councils must assess anybody in their area who appears in need of care services. Following an assessment, the Council must decide which needs are eligible for their support.
16. The statutory guidance states that care assessments must be appropriate and proportionate and that councils can complete assessment in a variety of ways, such as: face-to-face assessments; a supported self-assessment; and a telephone assessment.
17. It states that “Local authorities should also consider the impact of the assessment process itself on the individual’s condition(s)” and “give consideration to the preferences of the individual with regards to the timing, location and medium of assessment”.

Charging for care

18. The Council can charge an adult for the care and support specified in their care plan. The Council completes a financial assessment to determine the maximum weekly contributions it will ask the person to pay.
19. Disability related expenditure (DRE) are additional living costs a person may have that arise from a disability or long-term health condition. Councils consider DRE on request as part of a person’s financial assessment. Eligible DRE may reduce the amount a person has to contribute towards their care.
20. Direct payments are monetary payments made to individuals to meet some or all of their eligible care and support needs.

Background

21. Ms X suffers from health conditions that cause severe exhaustion and fatigue. She can be bedbound for up to 22 hours a day. The Council previously assessed Ms X’s care needs and arranged direct payments for her to purchase care to meet those needs.
22. The Council completed a financial reassessment of Ms X in June 2018. It identified Ms X had over £8000 of unused payments in her direct payment account and that her financial circumstances had changed. The Council said Ms X had to pay a backdated contribution towards her care package. It started an audit of her direct payment account and the unused money.
23. As part of that assessment, Ms X asked the Council to consider several items as DRE. The Council did not consider the items as eligible. Subsequently, Ms X appealed the Council’s decision and asked it to reconsider its assessment.
24. At the end of October, the Council sent Ms X the outcome of her DRE appeal with a revised financial assessment. Ms X disagreed with the Council’s assessment and complained to the Ombudsman. We issued a final decision in November 2019, and I summarise our findings below (paragraph 36). My investigation does not re-consider anything that we dealt with in that earlier decision statement.

What happened (October 2018 – November 2019)

25. The Council wrote to Ms X in mid-November 2018 about her direct payment audit. It set out the money she owed. It set out options for repayment and who Ms X could contact if she disagreed with the audit.
26. The Council allocated Ms X a new Social Worker (Officer A) at the end of 2018. They met with Ms X in December 2018 to review her care and support needs. Officer A referred Ms X to an advocate for support around the financial assessment process.
27. The Council placed Ms X’s direct payment audit on hold at the end of May 2019 whilst we completed our investigation into Ms X’s complaint.
28. We issued a draft decision to the Council in June 2019 about how the Council had considered Ms X’s DRE. Based on that, the Council contacted Ms X’s GP and dietician for further information for the DRE assessment.
29. In the Council’s letter to Ms X’s GP, it said it “should be most grateful if you could explain whether irrational/illogical decision-making/over spending are known symptoms of [Ms X’s] conditions. So far, it has been really quite difficult to distinguish whether [Ms X’s] purchasing habits are based on necessity or choice, albeit those choices may be symptomatic of her conditions”.
30. Ms X’s GP responded to the Council in September 2019. As well as providing further information about her conditions, they said the Council’s decision to pursue her for money had resulted in a deterioration of her mental health and caused her extreme anxiety.
31. The Council also received information about Ms X’s condition from a specialist clinic. That said that conflict over care could be ‘highly distressing’ and that Ms X was struggling to cope with the current situation. It said Ms X would benefit from a prompt resolution to start focussing on her rehabilitation.
32. In October 2019, the Council received an Adult Social Care referral for Ms X submitted by a friend. They expressed concerns about her wellbeing and mental health. The Council sent her friend an acknowledgement email but did not contact her further. The case records show that was because it did not have consent to speak to Ms X’s friend.
33. Around this time, Ms X’s advocate emailed the Council on Ms X’s behalf. She said Ms X was unhappy and wanted to resolve the differences in relation to her DRE and unspent direct payments. The Council dealt with that email as a complaint.
34. At the beginning of November, Ms X cancelled her package of care.
35. Ms X’s advocate sent a further email. In that Ms X said she had not initially been complaining but wanting to speak to the Council to bring an end to the DRE assessment process. She confirmed that Ms X now wished to complain because:
• The Council had failed to consider how the DRE assessment process had affected her mentally and had not considered information provided by health professionals about her mental health.
• The Council had written to her GP asking for information about her condition; she said that letter was inflammatory and presented her as unstable. She felt the Council were trying to disprove her medical condition.
36. We issued our final decision on Ms X’s complaint on 28 November 2019. We decided the Council was not at fault in its decision to backdate Ms X’s contribution towards her care. We made recommendations about how the Council considered Ms X’s DRE and asked it to visit Ms X’s property and to add a hoover to the DRE assessment. The Council agreed to comply with our recommendations within four weeks.

What happened (December 2019 – March 2020)

37. Ms X attempted suicide towards the beginning of December. Ms X’s therapist contacted the Council about the suicide attempt and with their concerns about Ms X’s mental health. The Council shared this information with Ms X’s GP.
38. At a similar time, the Council carried out our recommendations and wrote to Ms X with a revised financial assessment that included the addition of the hoover.
39. The Council also responded to Ms X’s new complaint towards the end of December. In that it:
• Said it needed evidence to support Ms X’s DRE claim. It apologised if Ms X was upset by that process, but said it had a duty to ask intrusive questions to determine eligible needs. The Council said its letter to the GP was not an attempt to discredit Ms X, but following direction from the Ombudsman’s investigation.
• Named Ms X’s social worker as her point of contact and said that she would need to meet if she wanted a further assessment of her care needs. The Council suggested Ms X contact her GP or a mental health charity for support with her mental health.
40. Ms X asked the Council to consider her complaint further. She specifically complained about the staff member who had written to her GP.
41. In January 2020, the Council received information of a further suicide attempt. Officer A shared concerns with Ms X’s GP, therapist and advocate. Officer A contacted Ms X’s therapist and asked advice on the best way to support Ms X. Following that, Officer A wrote to Ms X, they said “I’m really keen to start looking at ways in which we could help resolve things and wondered what the best way is to start with this?”.
42. The Council provided a final response to Ms X’s complaints in January 2020. As Ms X remained unhappy with the DRE assessment, it offered her a further assessment of her needs and provided her Officer A's contact details.
43. The Council also wrote to Ms X about her direct payment audit in January 2020 setting out what she owed. The Council said that letter was returned unopened.
44. Around that time, Ms X’s advocate stopped supporting her. Ms X’s therapist emailed the Council. They said Ms X could not engage with the Council directly because of ill health and asked it to contact her legal advocate.
45. The Council wrote to Ms X’s legal advocate about the outstanding overpayment and Ms X’s request for the Council to waive it. The Council states the legal advocate did not respond to its emails.
46. Ms X made a further complaint to the Ombudsman in March 2020 about the Council’s failure to make reasonable adjustments to support her to use its services. She provided several examples where she felt it had failed to recognise the impact its actions had upon her mental health; that included delays in it making decisions about DRE and how it asked her for information.

Information provided by the Council in response to our investigation

47. The Council said it has made reasonable adjustments to allow Ms X to access its service. It said it gave Ms X additional response time to provide necessary information with both finance and social care and when making complaints.
48. The Council said that previously Ms X had two single points of contact- one in the finance service (for DRE) and her social worker. However, since 2019, Ms X’s social worker, Officer A, was her single point of contact (SPOC) with the Council.
49. The Council said Ms X has also had contact with the audit team because of her direct payment audit. The audit team had directed Ms X to the financial assessment team when she (or her advocate) had questions about her DRE assessment.
50. It said Ms X had not responded to the Council and she no-longer engages with her advocate or trusted professionals. Therefore, it has no method of communicating with her either directly or indirectly.
51. The Council provided evidence it had suggested a managed bank account to Ms X on several occasions to support her with her direct payments.
52. In relation to its decision to ask Ms X to repay unused direct payments, the Council said that it considers Ms X understands means-testing and her direct payment agreement. It said Ms X understood she would have to make a financial contribution to her care and support.
53. It said it has considered all Ms X’s disabilities and mental health conditions as outlined by Ms X and her GP / therapist. It has also considered the financial position Ms X is in and the fact that she has unspent funds and significant savings and can afford the repayment. It decided, based on this that she would not suffer any financial hardship by repaying her debt.
54. The Council said it has not invoiced Ms X to started recovery action in relation to her outstanding debt. It said that Officer A has continued to encourage Ms X to engage with the Council in any way in which she feels able to do so.
55. In relation to the letter sent to Ms X’s GP, the Council said its questions were to better understand Ms X’s behaviour and clarify whether her condition may affect her choices.

My findings

The Council’s consideration of reasonable adjustments for Ms X

56. The case records show that before she had an advocate, Ms X’s preferred method of contact was email and that was the Council’s primary method of communication with her.
57. The evidence I have seen indicates the Council communicated with Ms X through her advocate until the start of 2020, when that advocacy support came to an end. It contacted Ms X’s legal advocate twice at the start of 2020 however, they did not respond. The Council has confirmed where it did not have Ms X’s consent to discuss Ms X’s personal information it did not. The Council was not at fault.
58. The officer the Council appointed as her SPOC was responsible for DRE. Although Ms X disagrees with the Council’s choice of officer, it was for the Council to decide who was a suitable point of contact. Ms X’s complaint is the SPOC could not resolve all her queries. The DRE service is separate to the financial audit service; although frustrating for Ms X, it is not through fault of the Council that the decision making in Ms X’s case involved more than one service/person.
59. The case records show the Council recommended a managed bank account to Ms X on several occasion to support her managing her direct payments.
60. I find the Council appropriately considered Ms X’s needs and circumstances and made reasonable adjustments to enable Ms X to access its services. The Council was not at fault.

How the Council asked Ms X for information for the DRE assessment

61. I have not investigated how the Council dealt with Ms X’s financial/DRE assessment in June 2018 or the subsequent appeal because that predates the period I am investigating. I have considered its communication from October 2018 onwards.
62. The Council wrote to Ms X in November 2018 about her direct payment audit and money owed. I have reviewed the content of that letter and do not have any concerns about its content.
63. At the end of 2019 there were emails between the Council and Ms X’s advocate about the need for dietician’s report to support Ms X’s DRE request. That was acceptable communication. The Council said it had not received anything further since we completed out last investigation.
64. The Council wrote to Ms X in December 2019 with a revised financial assessment following our final decision.
65. In Ms X’s complaint to the Council she referred to harassment from the audit team after it asked her for bank statements. I have not seen those emails, however, it is unlikely I would find the Council at fault for asking Ms X to provide details of the bank accounts holding her direct payment money. It was entitled to ask for this information. Therefore, I do not propose to investigate this further.
66. The Council was not at fault in how it communicated with Ms X about DRE. It must provide her a copy of her financial assessment and direct payment audit once these are completed.

Delays in completing the DRE assessment

67. The Council issued Ms X a revised financial assessment in October 2018. Following that, Ms X complained to the Ombudsman. After issuing our draft decision in June 2019 and on guidance from the Ombudsman, the Council sought further information. There was no delay in the Council doing that. The GP did not respond to the Council until September 2019. That was not the fault of the Council.
68. The Council completed the revised financial assessment within three weeks of our final decision. I do not consider that a delay. Nor do I consider the Council’s decision to issue the revised assessment insensitive. The financial service did not know about Ms X’s suicide attempt. It was complying with our recommendations. The Council was not at fault.

The Council’s letter to Ms X’s GP

69. The Council wrote to Ms X’s GP to get additional information about her medical condition to further assess her DRE.
70. The letter specifically questions and asks for clarity, on areas of disagreement between Ms X and the Council. It asked about Ms X demonstrating illogical/irrational decision making.
71. Fundamentally, it was for the Council to decide what information it needed from Ms X’s GP. Although I appreciate Ms X was upset about the content of the letter, she was not its intended audience. The Council was not at fault.

The Council’s request for a face-to-face assessment

72. Ms X feels the Council is pressuring her to have a face-to-face assessment when it knows she struggles to manage that level of interaction.
73. The Council has said it needs to meet with her to carry out an assessment. It has not explained how it has considered whether other options, including those set out by the Care Act, are appropriate to Ms X’s situation. That was fault. That has contributed to Ms X’s feeling that the Council is not enabling her to access its services. However, given Ms X’s disengagement with the Council it is unlikely that has delayed her accessing a further assessment.
74. As the Council has accepted my recommendation, Ms X can explain to the Council how she would prefer an assessment to be carried out, and the Council can consider whether an adjustment to its normal approach to assessment would be reasonable.

The Council’s failure to consider Ms X’s mental health in its decision for her to repay her unspent direct payment money

75. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached.
76. It is the Council’s decision on how to progress Ms X’s debt. The Council has considered Ms X’s understanding and the advice provided by health professionals. It has decided not to waive the outstanding debt and provided reasons for that. That is a decision for the Council, not the Ombudsman. The Council was not at fault.

Agreed action

77. Within one month of my final decision the Council has agreed to consider alternative ways of completing Ms X’s care needs assessment, having due regard to its need to carry out a proportionate assessment alongside her expressed wishes concerning contact. It will write to her with proposals for an assessment for her to consider.

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Final decision

78. We find the Council was at fault for not considering alternative ways of completing a care needs assessment. It has agreed to write to Ms X with alternative suggestions of how to complete the assessment. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman