Summary: Ms X complains the Council failed to deal properly with her financial assessment by failing to respond to telephone communications and correspondence, and by failing to make reasonable adjustments to reflect her needs, resulting in it imposing charges which she could not afford to pay and taking 10 months to resolve this. The Council failed to consider offering Ms X a face-to-face assessment, to ensure she received the support she needed, until 2022. This caused unnecessary distress when she received invoices for bills she could not afford to pay. The Council needs to apologise, pay financial redress and take action to ensure officers are aware of their duties under the Equality Act 2010.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains the Council failed to deal properly with her financial assessment by failing to respond to telephone communications and correspondence, and by failing to make reasonable adjustments to reflect her needs, resulting in it imposing charges which she could not afford to pay and taking 10 months to resolve this.

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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)

• 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, sections 30(1B) and 34H(i), as amended)

3. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Ms X;
• discussed the complaint with Ms X and her personal assistant;
• considered the comments and documents the Council has provided in response to my enquiries;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Ms X and the Council, for me to consider before making my final decision.

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What I found

5. From June 2020 the Council set out its position on face-to-face visits by adult social care staff in this statement:
• "Reducing footfall in Care settings and in people's own homes has been a key strategy to help to reduce the spread of the virus, and whilst creative ways have been found to stay in touch with service users and carry out statutory and professional work, there is no substitute in some circumstances for personal contact and connection. Some degree of 'face to face' contact is necessary for both service users and professionals to ensure that overall safety and health and wellbeing are being maintained during this difficult period."
6. The Council had more detailed guidance on when to do face-to-face visits. It listed various scenarios, none of which were directly relevant to Ms X’s circumstances (i.e. someone needing support with a financial assessment). However, it also said: “Every case should be considered on individual circumstances, and some face to face visits will be required in circumstances not listed in this guidance. If you are unsure if a face to face assessment may be required, please discuss with your line manager”.

What happened

7. Ms X lives in the same house as her mother. Her mother lives on the ground floor and Ms X lives independently on the upper two floors. Ms X has eligible needs for care and support under the Care Act 2014. She uses her personal budget to employ a personal assistant for two hours twice a week. Among other things, her personal assistant helps with paperwork because she cannot do this on her own.
8. When the Council visited Ms X to do a financial assessment in 2018, it decided she did not have to contribute towards her personal budget. Her assessment included 13 items of disability related expenditure (DRE) which totalled £72.44. It also included four items of essential expenditure (all housing related) totalling £24.78. The Council disregarded all this expenditure when deciding Ms X did not have to contribute towards the cost of her personal budget.
9. The Council did not update financial assessments during 2020 because of the COVID-19 pandemic. Ms X therefore remained a nil contributor.
10. In June 2021 the Council sent Ms X a letter inviting her to get in contact to arrange for someone to visit to do a financial reassessment. When she responded, they arranged to do the financial assessment on 7 July.
11. The Council wrote to Ms X, after speaking to her over the telephone on 7 July. It said she could afford to pay up to £70.31 a week towards the cost of her personal budget. It said her charge would be £57.08 a week, which was the full cost of her care. The assessment included a standard allowance of £10.00 a week for DRE and took account of essential expenditure totalling £21.94. This meant the Council disregarded £31.94 of her income as well as her guaranteed minimum income of £146.35 a week. It gave her 28 days to provide evidence in support of her claim for DRE. The assessment identified 11 items of DRE but did not assign any costs to them.
12. On 26 July Ms X e-mailed the Council about more DRE.
13. On 31 August Ms X wrote to complain the Council had not responded to her claim for DRE, sent within the 28 days it had given her to do this. She said she had received no response to emails or telephone calls since 23 August.
14. Ms X and her personal assistant called the Council on 6 September asking it to complete her financial assessment, taking account of the evidence of DRE she had sent to it.
15. On 20 September the Council wrote to Ms X updating her financial assessment. It said she could afford to pay £36.83 a week towards the cost of her care. The assessment listed 24 items of DRE totalling £41.56, plus a standard allowance of £10.00. It identified nine of the items as “verified”. However, it said £8.08 for heating was not included in the calculation. This meant Ms X’s total for DRE was £43.48. The assessment also took account of her essential expenditure totalling £21.94. The Council told Ms X it could not include food costs as DRE, as they were a daily living expense which the minimum income guarantee was intended to cover.
16. On 4 October Ms X was referred for social work support, but no action was taken.
17. On 11 October the Council received a letter from Ms X complaining it had not responded to her e-mail of 31 August or taken account of her extra DRE.
18. On 25 October Ms X told the Council she needed social work support, as she was struggling to deal with the finance department over the payments for her care and kept receiving threatening letters.
19. On 28 October, the care provider which employs Ms X’s personal assistant told the Council he had only been working two hours a week since 23 August. This had implications for her assessed charge.
20. The Council called Ms X on 1 November. It identified two letters she had sent which it had not responded to. Ms X pointed out that it had previously accepted the cost of her special diet as a DRE. The Council said it would consider the request and get back to her.
21. A further referral for social work support was made on 3 November, but again no action was taken.
22. The Council e-mailed Ms X on 5 November, following unsuccessful attempts to contact her by telephone. It said it had compared her DRE from 2018 with her current request and wanted to check if anything had been missed. It asked her to send receipts for her normal grocery shopping for four to six weeks.
23. On 12 November the Council told Ms X it needed to do a full financial assessment, as her mother was living in the same property. It said it could not include costs of a car as DRE as it belonged to her mother.
24. On 15 November the Council updated Ms X’s financial assessment on the basis it had made an error in July. It removed the standard allowance for disability related from the assessment, as this should only be included if someone is not claiming any other DRE. The Council also halved Ms X’s essential expenditure. This was the assumption that these costs were shared with her mother, which was not the case. These changes resulted in the Council saying Ms X could afford to pay up to £57.79 a week. However, her estimated charge was £57.08 a week, which was the actual cost her care.
25. On 22 November Ms X told the Council she would be in contact again when she had the receipts it had requested.
26. Ms X complained to the Council on 21 December about its handling of her financial assessment.
27. Ms X’s personal assistant called the Council on 26 January 2022. He said they had not heard anything since requesting an assessment on 4 October 2021.
28. When the Council replied to Ms X’s complaint on 3 February 2022, it said:
• it noted she struggled to understand the financial assessment process over the telephone, so would call when her personal assistant was present when doing telephone assessments;
• it was not visiting people, in line with Government guidance on COVID-19, so was completing all financial assessments over the telephone;
• it would visit Ms X when her personal assistant was with her to complete a financial assessment after the Government lifted its restrictions on 27 January;
• it apologised for the delay completing her financial assessment
29. On 25 February, following a number of failed attempts, the Council contacted Ms X to discuss a request for an increase in her personal budget. The Council’s records show this was a response to the request first made on 4 October 2021. Ms X said her personal assistant had spent so much time supporting her over the financial assessment, he had not been able to support her with the things he was meant to be doing. She said she also needed the Council to support her with the financial assessment and explain the process to her. She said she could not do the assessment over the telephone due to her communication needs. She said the finance department should not have communicated with her in the way that it had. The officer she spoke to agreed to contact the finance team and to refer Ms X for a review of her social care needs.
30. The Council arranged to visit Ms X on 15 March to complete her financial assessment but cancelled on the same day.
31. The Council rearranged the assessment for 19 April but cancelled because of a COVID-19 risk.
32. When the Council completed the assessment in May, it decided Ms X did not have to contribute anything towards the cost of her personal budget. The assessment took account of £26.42 of essential expenditure and £80.97 of DRE.

Legal and administrative background

33. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.

• The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.

34. The ‘protected characteristics’ referred to in the Act include disability.

• The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure 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.

35. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.

• 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.

36. We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.
37. The Council has pointed out that its Adult Social Care Policies and Procedures say: “The Council will make all reasonable adjustments to ensure that all disabled people have equal access to participate in the eligibility decision in line with the Equality Act 2010”. This relates to assessments of social care needs, rather than financial assessments.

Is there evidence of fault by the Council which caused injustice?

38. The Council failed to consider the possibility of doing a face-to-face assessment with Ms X until 2022. Its own guidance provided for that possibility. Even when responding to her complaint, it suggested it had been prevented from offering a face-to-face assessment by Government guidance. But that was not the case. This shows the Council failed to take account of its duties under the Equality Act.
39. When the Council started doing financial assessments again in 2021, its whole approach was one which was guaranteed to cause unnecessary distress to someone in Ms X’s circumstances. It wrote offering a face-to-face assessment but then arranged a telephone assessment. Despite the fact Ms X had not previously had to contribute towards the cost of her personal budget, it sent her a provisional assessment based on paying up to £72.44 a week. It would have been helpful if the Council had taken account of the earlier assessments at the start, as it should have been clear something was wrong when the outcomes were so different.
40. The Council was slow to respond to some of Ms X’s communications, including her attempts to get the social work team engaged with her problems.
41. These were faults by the Council which caused unnecessary distress to Ms X when she was asked to pay a charge she could not afford to pay. It also put her to the time and trouble of making her complaint. I accept that COVID-19 is likely to have been a contributing factor to the problems Ms X experienced (e.g. slow response times due to staff being unavailable), but this does not absolve the Council of all responsibility.
42. To comply with the Equality Act, officers doing financial assessments need to explore with people what support they might need. This is because the duties under the Act are anticipatory and not just responsive (i.e. do the right thing from the start, rather than wait for things to go wrong before doing the right thing).

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Agreed action

43. I recommended the Council:
• within four weeks writes to Ms X apologising for the distress it has caused and pays her £250; and
• within eight weeks, identifies the action it is going to take to ensure financial assessment officers are aware of their duties under the Equality Act and act upon them.

The Council has agreed to do this.

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Final decision

44. I have completed my investigation on the basis there has been fault by the Council causing injustice which requires a remedy.

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Investigator's decision on behalf of the Ombudsman