Summary: Mrs R complains that the Council made a mistake in Ms X’s financial assessment which led to a large bill. She also complains that the Council failed to make reasonable adjustments when communicating with Ms X. Mrs R says this has caused Ms X distress and taken time and trouble to resolve. The Ombudsman finds the Council at fault for failing to consider its duties to make reasonable adjustments for Ms X. This caused injustice. The Council has agreed to apologise to Ms X and make improvements to its service. The Ombudsman does not find the Council at fault for its financial assessments.

The complaint

1. Mrs R complains on behalf of Ms X. Mrs R complains that the Council:
1. made a mistake in Ms X’s financial assessment which led to a very large bill; and,
2. has not made allowances or reasonable adjustments for Ms X’s hidden disabilities when it communicates with her.
2. Mrs R says this has had an impact on Ms X’s physical and emotional wellbeing. Ms X has cancelled her care and support because she is so worried about the bill and being unable to pay it. Mrs R says this has caused Ms X avoidable distress and taken time and trouble to try and resolve.

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The Ombudsman’s role and powers

3. 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)
4. 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. 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)
6. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)

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How I considered this complaint

7. Ms X has given written consent for Mrs R to represent this complaint on her behalf.
8. I considered the information and documents provided by Mrs R and the Council. I spoke to Mrs R about the complaint. Mrs R and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
9. I considered the relevant legislation, statutory guidance and policies, set out below.

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What I found

What should have happened

Financial assessments and charging for care

10. Councils can charge for care and support services they provide or arrange. (Care Act 2014, section 14)
11. Councils must assess a person’s finances to decide what contribution they should make to their care costs. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)
12. Government guidance says it is important that people pay their fair contribution towards their care and support costs.

Council policy

13. The Council has a ‘Charging policy for non-residential services’. This says:

“If information relating to a change in financial circumstances is not provided to the council at the time of the change, which results in an increase to the assessed charge, the council retains the right to backdate the increased charge to the date of the change.”

14. The policy also says:

“Customers are responsible for notifying the Financial Assessment Team of any changes in circumstances that may affect their charges. Any resulting changes to customer charges will be applied from the effective day of the change.”

Reasonable adjustments

15. The Equality Act 2010 puts a duty on any body that carries out a public function. It aims to ensure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
16. The duty is to make adjustments by taking steps to remove or prevent obstacles to accessing that service. If adjustments are reasonable, they must be made.
17. The duty is ‘anticipatory’. This means that a council cannot wait until a disabled person wants to use the service. Instead, they must think in advance about what disabled people with a range of impairments might reasonably need, such as people who have a visual impairment, a hearing impairment, mobility impairment or a learning disability.
18. The Ombudsman can look at whether a council has considered making reasonable adjustments. We cannot decide if an adjustment is reasonable or if there has been a breach of law. This is something only the courts can determine.

What happened

19. In 2012, Ms X had a stroke which left her with an acquired brain injury. This means Ms X has cognitive difficulties, poor memory, and is unable to cope with paperwork.
20. In 2012, Ms X began receiving care and support. The Council assessed Ms X’s finances. She told the Council she received some earnings and also received Disability Living Allowance (DLA). She provided evidence to support this.
21. After this assessment, the Council sent Ms X a letter which explained how much she would be expected to contribute to her care costs. It explained that this amount had been calculated based on the evidence Ms X provided about her earnings and DLA.
22. In the following years, the Council sent Ms X letters reviewing her financial assessment. The letters said that Ms X received DLA and earnings, and that her contribution to care costs was based on that information. The letters told Ms X to check the information was correct, and that it was her responsibility to inform the Council if any of that information was incorrect.
23. In April 2019, the Council did a check with the Department for Work and Pensions (DWP) about Ms X’s benefits. The DWP told the Council Ms X had been in receipt of Employment Support Allowance (ESA) since January 2016.
24. In May, the Council sent Ms X backdated financial assessments which took into account her ESA from January 2016. It assessed that Ms X owed the Council for backdated care costs.
25. In July, Mrs R complained to the Council on Ms X’s behalf.
26. The Council replied, saying it had had access to the DWP’s system for two years. It said the onus was on Ms X to notify the Council of a change in financial circumstances.
27. The Council said it backdated Ms X’s charges to January 2016 because this is the date the DWP said Ms X began receiving ESA.

Analysis

Financial assessment

28. Mrs R complains that the Council made a mistake in Ms X’s financial assessment which led to a very large bill (part a of the complaint).
29. Mrs R says Ms X has been in receipt of Employment Support Allowance (ESA) since 2013, and that Ms X provided evidence of this to the Council as part of the financial assessment. Mrs R says Ms X did not notify the Council of any change of circumstances or income because there was no change: Ms X has received ESA consistently from 2013 to date. Mrs R says the backdated invoices were due to a clerical error by the Council.
30. The Council completed Ms X’s initial financial assessment in 2012. I have seen this financial assessment form. This says that Ms X received wages and Disability Living Allowance (DLA). It did not mention ESA.
31. Further, I have seen the evidence that Ms X provided the Council in 2012 to support this financial assessment. Ms X provided a letter from the Department for Work and Pensions (DWP) which confirmed that she received DLA. She also provided a bank statement which showed her earnings.
32. I find that the Council completed that financial assessment correctly, based on the information Ms X supplied. Ms X signed the financial assessment form in 2012 which said the information she provided was correct.
33. I have seen no evidence which shows Ms X told the Council at any time that she receives ESA.
34. The Council sent Ms X annual letters which showed that her care contributions were based on her DLA and wages. I have seen no evidence which shows Ms X told the Council before 2019 that this was incorrect information.
35. The Council used the information from the DWP – that Ms X received ESA from January 2016 – to calculate the contribution Ms X should have been making since 2016 towards her care costs. This has ultimately resulted in a large bill.
36. I do not find fault with the way the Council financially assessed Ms X. Ms X had an obligation to inform the Council that she was in receipt of ESA. I have seen no evidence that she did this.
37. The Council is entitled to backdate charges, in line with its policy (see above). I find the Council has correctly applied its policy.
38. For these reasons, I find the Council’s bill is a legitimate invoice for care charges. I do not agree with Mrs R that the Council made an error in calculating Ms X’s contributions to her care.
39. Mrs R says Ms X received ESA from 2013. The DWP says Ms X received ESA from 2016. If Ms X believes the DWP has incorrect information about her benefits, she must raise this with the DWP. I cannot comment on this because the DWP is not within the Ombudsman’s jurisdiction.
40. Mrs R also complains that the Council failed to do a face-to-face financial assessment with Ms X for six years (each year after the initial financial assessment in 2012).
41. The Council’s policy says it will conduct a face-to-face financial assessment with someone at the point they are assessed as needing care and support. The Council says if it is asked for a further visit, it will usually send an officer to that person. The Council says it has no record of any requests from Ms X for a further face-to-face visit to gather financial information.
42. I do not find fault here. I find that the Council assessed Ms X in person for the initial financial assessment as it should have. I have seen nothing that persuades me that Ms X asked for any further face-to-face assessments.

Reasonable adjustments

43. Mrs R complains that the Council has not made allowances or reasonable adjustments for Ms X’s hidden disabilities when it communicates with her (part b of the complaint).
44. Mrs R says the Council sent Ms X 20 pages of paperwork. She says people with acquired brain injuries cannot cope with this.
45. The Council says it is aware that Ms X’s injury means she has difficulty with memory, planning, and decision-making, and that her ability to process information is slow.
46. I have seen no evidence that the Council considered making reasonable adjustments in the way it communicated with Ms X, particularly about the backdated invoices.
47. This is fault. The duty to consider reasonable adjustments is anticipatory. The Council was aware of Ms X’s disability and how that disability affects her. I find that the Council failed to consider making reasonable adjustments for Ms X in line with its duties under the Equality Act.
48. Furthermore, I find there was poor communication between Council departments about how it should communicate with Ms X.
49. I find that this fault caused Ms X unnecessary distress, which is injustice.
50. The Council accepts that it “could have consulted further with Ms [X] about the support she required to ensure reasonable adjustment was made, as required by the Equality Act 2010, and shared with others making contact with her”.

Agreed action

51. Within four weeks of this decision, the Council will apologise to Ms X in writing for the unnecessary distress caused (see paragraphs 47 to 49).
52. Within eight weeks of this decision, the Council will consider making reasonable adjustments in the way it communicates with Ms X in the future.
53. Within three months of this decision, the Council will arrange training for staff on the Equality Act and its statutory anticipatory duties in making reasonable adjustments for customers.
54. Within three months of this decision, the Council will review the way different departments communicate with each other about reasonable adjustments. The Council should consider how all relevant departments are informed when it agrees reasonable adjustments with a customer. This should ensure a consistent approach. Customers should not have to repeat requests for reasonable adjustments to different departments.
55. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

56. I have completed my investigation. I uphold part b of this complaint because I find fault causing Ms X injustice. The Council has agreed to take action to remedy the injustice and make service improvements.
57. I do not uphold part a of this complaint. This is because there is no fault.

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Investigator's decision on behalf of the Ombudsman