Summary: Mr C complained to us about the way in which the Council carried out his financial assessment. He said the Council failed to make reasonable adjustments during the process and failed to properly deal with some of his disability related expenses (DREs). Mr C says this made him distressed and resulted in an assessed contribution he cannot afford. The Ombudsman found fault with regards to the Council’s actions, which caused an injustice. The Council has agreed to reconsider part of his expenses and share the lessons learned with its staff.

The complaint

1. The complainant, whom I shall call Mr C, complains about the way in which the Council carried out his financial assessment, from November 2018 onwards. He is unhappy:
• The Council failed to take his autism / ADHD into account with regards to the way it dealt with and progressed his financial assessment.
• About the way in which the Council dealt with his DREs.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. I considered the information I received from Mr C and the Council. I shared a copy of my draft decision statement with Mr C and the Council and considered any comments I received, before I made my final decision.

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What I found

Legislative background

6. The Statutory Care and Support Act Guidance says a Council needs to make reasonable adjustments if, where and when a client has special communication needs that should be met to ensure the client can be fully involved in any assessment process. For instance, if a client with Autism prefers a face to face assessment instead of an assessment over the phone, due to Autism related communication difficulties.
7. Since August 2016, all organisations that provide NHS care and / or publicly-funded adult social care are legally required to follow the Accessible Information Standard. The Standard sets out specific requirements on how to identify, record, flag, share and meet the information and communication support needs of clients. It applies, amongst others, to people who use a service and have information or communication needs because of a disability, impairment or sensory loss.
8. The National Autistic Society has developed a guide for councils to help social care staff prepare for and deliver assessments for adults with an Autism Spectrum Disorder (ASD). It states that:
• People with autism often have a literal understanding of language and often think that people always mean exactly what they say. Information does therefore need to be very clear.
• Council staff need to take a consistent approach and need to be reliable. Simple things like arriving on time, having the necessary paperwork and not making promises unless being sure they can be kept, will help the person to develop trust. Inconsistent and unreliable support can be worse than no support at all.
• Meeting an assessor may often feel like quite a daunting prospect. They may have problems with predicting what will / could happen. Because the world and people in it seem so unpredictable, many people with an ASD experience stress and anxiety. This can have a huge impact. When under stress, the ability to communicate, interact socially and to think flexibly is likely to be further reduced.
• It is good practice for council staff to have a clear idea of how to engage with the person that needs to be assessed, and their ways of communicating and understanding, before starting. Without this, the person may not engage, and the Council may risk making them feel anxious or more isolated.
9. The Statutory Care and Support Act Guidance says that:
• The overarching principle of any financial assessment is that people should only be required to pay what they can afford. As such, councils should, when making decisions on charging, take into account the principle that the charge is not more than it is reasonably practicable for the client to pay, and the Council should promote wellbeing, social inclusion, and support the vision of personalisation, independence, choice and control. A person must be left with enough money to pay for daily living costs such as rent, food and utilities. As such, after charging, a person must be left with at least the minimum income guarantee (MIG).
• In addition, where a council takes disability-related benefits into account, it should allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs not being met by the council. DREs are any extra costs a person may have due to their disability. The guidance includes a list of items that councils should consider when assessing disability-related expenditure. The list is not intended to be exhaustive and councils should include any reasonable additional costs directly related to a person’s disability. The list includes some of the following items:
1. Additional costs of special dietary needs due to illness or disability (the person may be asked for permission to approach their GP in cases of doubt)
2. Internet access for example for blind and partially sighted people
3. Other transport costs necessitated by illness or disability, over and above the mobility component of DLA or PIP, if in payment and available for these costs.

What happened

10. Mr C, who has conditions including autism and ADHD, has received support from care workers in his own home. His circumstances changed in 2018, which resulted in an increase in the benefits he received. As such, the Council had to carry out a financial reassessment to calculate if this would impact on the contribution he would have to pay towards the cost of his care. At the time, the Council was aware that Mr C had specific conditions that affected the way in which he could communicate. His social care assessment from 2015 said that:
• Mr C is dyslexic, has Asperger’s Syndrome and ADHD. He struggles to write.
• He is articulate and can verbally communicate his needs by telephone.
• He needs help in new and unfamiliar situations as the stimulus and information can be overwhelming, until he has built up his confidence.
11. Mr C told me he is unable to discuss his needs over the phone with anyone who he does not know.
12. Mr C says he received a phone call at the end of November 2018 ‘out of the blue’. He did not know the person, and the call was unexpected. He found this was particularly inappropriate, because, with his needs (Autism / ADHD), he can be thrown by unexpected phone contact, and his care assessment says he has great difficulty with contact from people he does not know.
13. The purpose of the call was to carry out a financial reassessment over the phone, rather than in person. The assessor asked Mr C to provide a lot of financial information right there and then over the phone, even though Mr C explained to the assessor he did not have this at hand. Mr C says:
• The assessor should have been aware that he gets social care support because he finds it difficult dealing with paperwork and finances, so should not have pressed him in this manner.
• He asked the assessor for a home visit so he could provide the information the assessor needed, while being supported by his care worker. However, the assessor did not agree to this.
14. I listened to the call Mr C recorded of this conversation and confirm the above statement from Mr C is an accurate reflection of the call.
15. The Council told me that it conducted financial assessment reviews by telephone. When customers have their initial assessment, part of the declaration confirms that future reviews will be by telephone.
16. The Council told me that, following the introduction of the Accessible Communication Standards in July 2016, it changed its electronic record forms to ensure that communication needs can be captured. This starts from the very first contact, and the information is automatically pulled through to future documents. It is the responsibility of the staff member to update the electronic system and create a flag in relation to communications if needed. This information (flag) is subsequently only available to some of its departments, not to all. It added a red warning note on the front screen of Mr C’s electronic records mid-November 2019 that states. “Email contact preferred, do not call out of the blue”.
17. The assessor subsequently completed her financial assessment without having the information she had asked for and without providing Mr C an opportunity to discuss DREs. Mr C subsequently received a letter that said he should contribute more than £80 per week to the cost of his care.
18. Mr C was unhappy with the way the financial assessment was carried out and contacted the Council to ask for a face-to-face reassessment. The Council agreed and a different assessor carried out a visit mid-December 2018. Mr C said he wanted the Council to consider the following as DRE and told the assessor:
• Transport: his family and friend live far away so he has to spend a lot of money on train journeys to visit them. However, he says the assessor only said that: unless the travel costs are related to a medical issue, the Council would not allow it as DRE.
• Diet / food: he needs to follow a special diet, which results in a higher weekly shopping bill. The assessor said she would discuss this with her manager. Mr C says he also said that his disability impacts on his ability to prepare and keep food, which results in food wastage. As a result, this meant he had to spend more on food.
• Internet: he used this as his main or only contact with family and friends. The assessor said she would discuss this with her manager.
19. The Council told Mr C in writing about the outcome of the reassessment. However, the letter only said that: “I have reduced your contribution due to your disability related expenditure and extra laundry costs. Unfortunately, I have not been able to include extra amounts for food, internet or transport unless it is to / from medical appointments”.
20. The Council only provided an explanation after Mr C went back to the Council to ask for reasons. The Council subsequently told him that:
• “It would only allow for extra food if it is due to a special diet recommended by your GP. (…) Special dietary needs may not be more expensive than normal diet costs. Where there is an additional cost, the weekly spend on groceries needs to be in excess of £35.96 for an allowance to be made. Details will be required of more expensive items and evidence of need from a GP may be required.
• Our guidance for allowing cost of internet advises that: Specialist Internet Access for example blind and partially sighted people – rate charged by the provider”.
21. Mr C says he was not happy with this, because:
• The assessor should have asked him at the visit if he has evidence that he has special dietary requirement.
• His main contact with his close friend was via Facebook as he doesn’t use a phone.
22. On 2 January 2019, Mr C’s care agency raised a concern with the Council about the impact the increased contribution had made on Mr C. It said that:
• Mr C said he cannot afford to pay the increase as he is left with only around £39 a week. As such the care agency reviewed his expenses and concluded he is unable to pay that amount. As such, we agreed with Mr C to reduce the care from six to 2 hours a week. This is the amount Mr C felt he could pay. The care provider would prompt him by text on the days it is now no longer able to visit him. This reduction started the week beginning 24 December.
• Please adjust the invoiced accordingly, because if he receives an invoice for a higher amount, this could be very detrimental to his mental health.
• The care agency was concerned the reduced support would out Mr C at high risk of self-neglect, a risk of anxiety relapse and becoming further isolated.
23. In response, the Council discussed this internally and agreed to allocate a new worker to look at Mr C’s outgoings. However, this could take some time.
24. Mr C called the Council on 11 January 2019 to say that he was in a very distressed state and could not cope on only two hours per week. He said he was very anxious and was drinking heavily to cope with this.
25. The care agency told the Council on 14 January 2019 that it was very concerned about the impact of the reduction in hours on Mr C’s mental health. It asked the Council to allocate a social worker as soon as possible. It explained Mr C had accrued debts, which in combination with his recent increase in client contribution, resulted in increased anxieties for him. The provider described Mr C as lonely, because he does not leave the house or see anybody apart from when the support workers. He also cannot afford to visit his family.
26. The Council proposed to carry out a joint visit with the care agency. It scheduled one for 30 January, which only took place on 7 February, due to Mr C’s health.
27. On 6 February 2019, the Council received a statement from Mr C in which he described what had happened so far in relation to the financial assessment, and the impact it had on him. He wanted the social worker to consider this before the visit.
28. The record of the meeting on 7 February 2019 says that:
• DRE (diet): The social worker would contact Mr C’s GP to get medical evidence with regards to his lactose intolerance.
• Mr C wanted to go back to six hours of support a week. He understood this would increase his client contribution. He is happy to pay this if he is getting the support that he needs.
• The social worker would refer Mr C to a Local Area Coordinator (LAC) to support him with engaging in his local community to improve his mental health.
• They discussed his finances and Mr C advised he was free of debts now, but often incurred overdraft charges which can easily escalate.
• They arranged to meet again on Thursday 14 February to update Mr C’s care assessment.
• Agreed to restart the previous package of care on 18 February.
29. Mr C made a complaint to the Council on 4 March 2019 about the way in which it had carried out his financial assessment and considered his DREs. Mr C added that:
• Transport: He wanted the cost of transport to be considered as DRE. He said that personal contact with his family and friend who lived elsewhere was hugely important for his wellbeing and mental health.
• Internet: Due to his disability, internet is a fundamental communication tool for him. He needs internet for his social contact and discuss his care needs with stakeholders. As such, he wanted the cost of this considered as DRE.
• He also again raised that he has additional expenses on food due to his “Autism infatuated needs regarding my perception of food”.
30. After the GP provided medical evidence of Mr C’s food intolerance on 12 March 2019, the social worker passed this on to the finance team with a request to:
• Include the costs of his diet.
• To include the cost of internet. The social worker said that: Mr C’s experiences great difficulty in social situations and interacting with other people. This is related to his diagnoses of Asperger syndrome, anxiety, depression and ADHD. Mr C finds it difficult to communicate with people over the phone and face to face. Due to the way he processes information he uses written electronic information as a way to maintain contact with the world outside of his flat. For this reason, he uses the internet, such as social media and email as his only way of maintaining contact with his family who live out of area, friends, and involved professionals, including the Council. Without this service, Mr C’s anxiety and depression would significantly deteriorate, as he would become withdrawn and isolated.
31. With regards to the Council’s complaint response of 13 March 2019:
• Transport:
1. The Council said Mr C should get a bus pass and try to have his mobility payments reviewed to see if he would qualify for the higher rate. However, Mr C says he already told the Council in his complaints letter “that he has a bus pass”. It was also not explained on what basis the Council believed such a PIP mobility benefit review would be successful.
2. Mr C told me that he also told the Council that, due to his disability, he was sometimes unable to use a bus because he was to distressed. As such, he would sometimes have no other option than to take a taxi. The Council told Mr C that his PIP mobility allowance could cover the cost of his taxi journeys. I have not seen evidence in the records that Mr C told the Council why he sometimes had no choice but to use a taxi.
3. Mr C says the PIP mobility money is not enough to also pay for the train to visit his family once a year (£170 by train) and his only real friend (4 times a year at £30 each). This is very important to enable him to meet his need for maintaining family and friendship relationships. He therefore wants these expenses considered as DRE. If the Council tells him to contribute £80 a week towards his care package, he will not have the money left to pay for these journeys, which will have a detrimental impact on his wellbeing.
• Food:
1. The Council told Mr C that, to consider if it should cover some of his costs as DRE, he would need to provide evidence of the specialist food items he buys, and what the additional cost of those products is. It would only consider any costs above £35.96 per week.
2. Mr C says it was unreasonable that the Council put an extra burden on him to collect this financial information. The Council knew that he has difficult managing his budget, shopping and with paperwork. He could therefore not collect this information himself. The Council should have temporarily increased his support hours so he could get support from his care agency to collect this.
3. The Council says it does not believe it was too difficult for Mr C to provide this. It also provided an example to him.
4. I did not see evidence that Mr C told his care workers or the Council, until September 2019, that he would not be able to collect this information without help from his support workers.
• Internet costs:
1. The Council asked Mr C to provide evidence of the cost of his internet. The Council has told me it has not received this yet. It said it usually does not count a general internet package as DRE, because it is a standard expense for most people. However, if Mr C has a particularly large internet bill due to the amount of data he needs as his main social outlet, the Council may consider this ‘additional cost’ as DRE.
32. Mr C had a care review on 20 June 2019, which said the support plan was working well, and he seemed much happier in himself. He had recently started a voluntary job and also joined a gym. Mr C said he now felt more able to go out with his support.
33. Mr C’s MP wrote a letter to the Council on 27 June 2019, to which the Council responded a week later. The Council told the MP that Mr C had not contacted the Council anymore about his complaint, since March 2019.
34. The Council contacted Mr C at the end of September 2019, to say it had not received the weekly contributions he has to pay for his care. Mr C said he did still not agree with the Council’s assessment and he was going through the Council’s complaints procedure. The Council confirmed two weeks later that there was no open complaint outstanding. As such, the Council said it would send Mr C a final warning to pay the contribution. However, before it did, it made the adult social care team aware of the current situation.
35. I have seen a copy of a letter from the MP to the Council, and the Council’s response. Other than that, there is no evidence that Mr C continued to pursue his complaint about his financial assessment (internet costs, transport costs, diet costs), between 15 March 2019 and November 2019. Mr C told me this was due to the difficulties he has, due to his condition, in communicating.
36. Mr C contacted the Ombudsman at the end of October 2019. He also told the Council, two weeks later, that: “he needed support with all that is going on at home at the moment”. He was worried, because he received legal documents from the social care payments department and needed help with this. The Council told him it would pass his concerns to a duty worker who would contact him to discuss these issues in more detail. The Council said it would also advise the worker that he prefers email over phone contact in the first instance.
37. We contacted the Council on 26 November 2019 to say that Mr C had referred his complaint to us. During the course of our investigation, the Council has not sent any further letters to Mr C to tell him to pay his debt.
38. The Council asked Mr C’s care agency on 27 November 2019, if it could support him with the issues raised in his letter, such as gathering evidence for disregarded income for food bills and an internet bill. The care agency said it would.
39. An internal Council email from 24 January 2020 says that: “Due to the current pressures on the team with staffing and allocations we will not be able to allocate a social worker to support with supplying documents. If this is not something one of your team can assist him with, I will ask duty to ask his care support to assist him with this”.
40. The Council told me its social services were aware of this issue, but it could not comment why social services has not provided any support with this so far.
41. The Council contacted Mr C’s home care provider again on 29 January 2020. The provider said they were aware of the previous request for this documentation. They felt Mr C “is able to independently deal with this situation’, but they would offer assistance to him to put the information together”.
42. Mr C said:
• It was not possible for him to obtain / provide the information the Council wanted about the costs of his diet. However, he says it took until the Council’s subsequent complaint response on 16 January 2020, before it acknowledged this and offered support to him from his allocated social worker to gather this information.
• This information has still not been obtained as a result of which there has still not been an allowance made for the additional cost of his diet in his financial assessment.
• He has tried to keep a diary about the food he wastes due to his condition. His carers have helped him with trying to manage this, but they can’t do so effectively because he would need support around each meal for that (3 times a day). Mr C says the Council has never come to a view if it would consider a particular amount in relation to that as DRE, or if not why not.
43. The Council told me that Mr C receives homecare support around food/meal management: Support with menu planning and shopping lists, support to do food shop, meal preparation and batch cook healthy meals. This would suggest that there is no food waste or inappropriate storage as paid support is there to negate this.
44. The Council chased the outstanding debt on 17 October 2019: £2,319. The letter said that if he dispute the debt, he should tell the Council that he is seeking debt advice. Mr C subsequently disputed the debt
45. In response, the Council told Mr C on 27 November 2019, that it had already provided a response to him on 13 March 2019 and it had yet to receive his financial information in relation to his diet and internet costs. The letter said it would give him four weeks to provide this.
46. The Council told me its Income Team has had an extensive autism (refresher) training in February 2020.

Analysis

47. With reference to 8.4 above, the Council did not have a clear idea at the start of how to engage and communicate with the person to be assessed (Mr C). As such, the financial reassessment in November 2018 did not take account of Mr C’s special communication needs. This was fault. A person unknown to Mr C called him out of the blue and demanded a range of financial information. Mr C explained he did not have these to hand and requested a home visit, which was refused. This was fault. As such, the Council failed at this assessment to make reasonable adjustments and be sensitive to Mr C’s special communication needs.
48. Without having received all the information the Council needed, including giving Mr C an opportunity to discuss DRE, it completed the financial reassessment and told Mr C how much his contribution would be. This is fault.
49. It subsequently sent a letter to him to tell him he would now have to start to pay a contribution of £80 per week. By informing Mr C in this manner of the huge increase in his assessed contributions, which would have come out of the blue again, it failed to consider the anxiety this news could likely cause him and it failed to consider whether there was a more sensitive / appropriate manner to inform him of the outcome. This is fault.
50. It appears from the records and the care agency’s views expressed at the time, that the information in the letter had an impact on Mr C’s mental wellbeing. He decided to reduce the support hours between the end of December 2018 and mid-February 2019, which made him distressed and anxious. However, it has to be noted that other factors, outside the Council’s influence, also had an impact on the deterioration he experienced at the time (debts etc).
51. The Council subsequently agreed to have a face to face financial reassessment, when Mr C asked the Council again. The assessor discussed the various expenses Mr C wanted to be treated as DRE. However, the assessor failed to explain, at the meeting, what information the Council would need to consider whether it would include any extra costs related to a special diet.
52. After the Council’s visit to Mr C, it did not explain in its letter of 14 December 2018 why it decided not to treat certain expenses as DRE. This is fault. It only provided this after he asked for it.
53. The Council obtained information from Mr C’s GP in February 2019 and asked Mr C to provide supporting evidence to show he has to pay more for his food per week due to his dietary needs. It was not until November 2019 before Mr C asked the Council for help with this. The Council agreed to his request, but subsequently failed to provide the support. This is fault.
54. The Council considered Mr C’s request to have his internet costs treated as DRE. The Council told Mr C in March 2019 to provide evidence as to how much he pays for this, so it could consider this. However, Mr C has failed to provide this.
55. Food wastage: The Council failed to sufficiently look into this. It has not come to a view how much Mr C wastes, to what extend the current package can sufficiently manage this, and why it believes this.
56. When Mr C and the care agency told the Council in January 2019, that he could not afford his contribution, the Council took the correct step to allocate a new social worker to look at his financial outgoings. Although the Council subsequently looked into Mr C’s DRE, and there was a potential therefore for his contribution to be reduced in the future, it did not come to a view if the current assessed weekly charge was affordable at that time. This is fault.
57. There is no evidence that Mr C continued to pursue his complaint about his financial assessment (internet costs, transport costs, diet costs), between mid-March 2019 and November 2019.
58. There was a delay of seven months before the Council added the information it obtained in April 2019 about Mr C’s special communication needs.

Agreed action

59. I recommended the Council should, within four weeks of my decision:
• Provide an apology to Mr C for the faults identified above and the distress these have cause him. It should also pay him £200.
• Look into Mr C’s food wastage to decide if this can be reduced and/or whether it should allow a certain amount as DRE. It should explain its decision to Mr C and backdate the reduced contribution (if any) this may result in.
• Review if it should treat some of Mr C’s transport costs as DRE by coming to a view about:
1. The extent to which he needs to use a taxi sometimes.
2. What his average travel costs are and to what extend this is covered by his PIP mobility.
3. To what extent visiting family and friends by train is vital to meet his need for maintaining relationships and if Mr C can still afford to pay for these train journeys in light of his weekly contribution.
4. The additional costs of Mr C’s diet, by providing support to Mr C to obtain the required financial information.
• It should explain its decision to Mr C with regards to the above, and backdate any reduced contribution this may result in.
• Once it has completed the above, and made any changes as needed to the contribution, it should come to a decision whether the final assessed weekly contribution is affordable for Mr C and explain this to him.
• Share the lessons learned above with the Council’s teams responsible for carrying out financial assessments.
• Remind its social care staff of the requirement to raise and discuss any special communication needs at the first opportunity and record, log in system and flag communication needs in such a way that they are sufficiently clear and comprehensive for staff of all departments who have access to this.
• Ask its social care staff to review whether a flag currently exists for all their clients who may need one, and if the information included is sufficiently clear and comprehensive.
60. The Council has told me it has accepted my recommendations.

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Final decision

61. For reasons explained above. I decided to uphold Mr C’s complaint.
62. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case

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Investigator's decision on behalf of the Ombudsman