Summary: We found fault with the Council for the way it communicated with B about his personal contribution debt. There was also some fault with the way the Council communicated with B during its complaint process. This caused B distress. The Council agreed actions to remedy the injustice it caused B.

The complaint

1. B complained about the management of his direct payments and the way the Council communicated with him during his Care Act assessment. He complained:
• WECIL (acting on behalf of the Council) failed to understand his communication needs and make reasonable adjustments;
• WECIL failed to explain changes to his account which made him accrue debt;
• the Council agreed to clear the debt but continued to contact him about it;
• the Council failed to respond to all his complaint points;
• the Council failed to understand his communication needs and make reasonable adjustments; and
• the Council failed to explain the assessment process in a way he could understand.
2. B said this caused him distress, loss of sleep and anxiety. He also said he lost support because he had to use his support hours to help him through the complaint process.

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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 decide if a council has breached the Equality Act as this can only be done by the courts. However, we can find a council at fault for failing to take account of their duties under the Equality Act.

5. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
6. 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

7. I spoke to B and considered the information he provided with his complaint. I made enquiries with the Council and considered its response with relevant law and guidance.
8. B 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

Law and guidance

The Care Act 2014

Assessment and support plans

9. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult who appears in need of care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
10. The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. The support plan must include a personal budget which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
11. Councils must keep plans under review and are expected to review at least annually.

Personal budget

12. The Care and Support guidance says everyone must receive a personal budget as part of the care and support plan if the council is meeting their needs, either because the needs are eligible needs or because it has chosen to meet them.
13. Councils must be satisfied the person can manage the direct payment and should take “all reasonable steps” to provide help and support to people to manage the direct payment. Councils often have arrangements with other organisations to provide this service.
14. Where a person uses a direct payment to employ a personal assistant (PA), they become an employer with all the responsibility for PAYE, holiday pay, sick pay, redundancy, recruitment etc. A support agency should be available to help with this.

The West of England Centre for Inclusive Living (WECIL)

15. When someone receives a direct payment from the Bristol City Council, they can choose to have support managing it. WECIL is one of two support agencies the Council has an agreement with.
16. There is a performance management framework within the agreement. WECIL and the Council have quarterly quality assurance meetings.

The Equality Act 2010 and reasonable adjustments

17. 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.
18. 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.
19. 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.
20. Councils are not required to do more than it is reasonable for them to do.

What happened

21. What follows is a brief chronology. It does not contain all the information I reviewed during my investigation.
22. B receives direct payments for his eligible needs because he is an autistic person. He uses the money to pay for a personal assistant (PA). The PA supports him to meet his assessed needs.
23. B chose WECIL to manage his direct payments. There was an issue with B’s personal contributions and he accrued a debt of £3779.07.
24. In February 2020 WECIL asked the Council to review B’s support plan. A social worker assessed B and decided his PA hours needed to increase.
25. B was unhappy with the assessment process. He complained to the Council about the assessment and the invoice for unpaid personal contributions. He also complained about the way WECIL communicated with him about the changes to his account that led to the unpaid contributions.
26. The Council responded at stage one of its complaint process in February 2021. The Council:
• did not find fault with B’s Care Act assessment.
• agreed to clear the accrued personal contribution debt because it recognised there had been a “breakdown in communication with WECIL”.
• said it would review B’s support plan in September 2021.
• said it had identified learning opportunities for the Council and WECIL based on B’s complaint.
27. B was unhappy with the Council’s response. The Council reviewed the complaint and provided its final response in April 2021. The Council said:
• it shared B’s concerns with WECIL and would follow up the issues.
• it provided information about the Care Act assessment and recognised the need for reasonable adjustments.
• the assessment recognised B’s needs.
• the social worker had received suitable training.
• WECIL completed a full review of the case. It committed to continue to improve the communication and agreed staff would have further training this year (2022).
28. B was unhappy with the Council’s final response and complained to the Ombudsman.

My findings

Communication with WECIL and the Council about the accrued debt

29. There was fault with the way WECIL and the Council communicated with B about his personal contributions. This caused B to accrue debt. The correspondence about the debt caused B distress. The Council added to his distress. It wrote to him about the debt after it already agreed to cancel it.
30. WECIL apologised to B. It said:
• it discussed the complaint with the advisors involved;
• assigned a worker to B for future contact; and
• committed to providing its workers with autism training.
31. The Council apologised and cancelled the debt.

The Care Act assessment process

32. I did not find fault with the Council for the way it communicated with B during his Care Act assessment. I also did not find fault with the Council for failing to make reasonable adjustments during the assessment process.
33. B asked the Council to:
• communicate by email;
• include his advocate in correspondence; and
• send a text message when it sent him an email.

The Council made these adjustments.

34. B complained the Council failed to explain the assessment process in a way he could understand. The Council said:
• it made the reasonable adjustments B requested.
• the social worker tried to answer all B’s questions about the assessment
• B completed the self-assessment and the Social Worker used this to help inform the assessment
• B was supported by his advocate and PA for the assessment process
• the social worker used a prompt tool during the assessment that was designed to use with autistic people
35. The Council said it made every effort to make reasonable adjustments for B so he could understand the assessment. It does not know what more it could have done.
36. B said despite the Council’s adjustments and efforts he did not understand the criteria he was assessed against.
37. The Council made adjustments during its communication with B for his assessment. Whether or not these were ‘reasonable’ for the purposes of the Equality Act is for the courts to decide.
38. The Council did not fail to take account of its duties under the Equality Act in its dealings with B. I understand B’s frustration that he did not fully understand the assessment criteria, but that does not mean there was fault by the Council.

The complaint handling

39. I found fault with the way the Council communicated with B about his complaint.
40. The Council agreed the complaint headings and desired outcomes with B.
41. The Council’s review of its complaint response in April 2021 failed to clearly set out its response for all of B’s desired outcomes. For example, B asked for a meeting with the Council but this meeting did not happen. This caused B frustration as he felt he did not receive an answer to all his complaint points.
42. Failing to address all the desired outcomes and follow these up with B was a missed opportunity to resolve the complaint at an earlier stage. This caused B extra time and trouble bringing his complaint to the Ombudsman. This was frustrating for B because the complaint process caused him anxiety. He also used some of his PA hours to support him through the complaint process. He could use these hours for support with other needs.

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Agreed action

43. Within one month of my final decision the Council agrees to:
• Pay B £500 to recognise the distress, time and trouble it caused him.
• Arrange to meet with B to answer his outstanding questions about his complaint and desired outcomes, as far as it can.
44. The Council should provide the Ombudsman with evidence it has completed the agreed actions.

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Final decision

45. I found fault with the Council causing injustice. I completed my investigation.

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Investigator's decision on behalf of the Ombudsman