Summary: The Council failed to act proactively to consider what reasonable adjustments were required as part of a social care financial assessment in June 2019. As a result, Mr X who has learning difficulties and cannot read, attended alone and information was provided in writing. For subsequent financial assessments, the Council arranged for an advocate to assist Mr X. A suitable remedy for the uncertainty, distress and confusion caused is agreed.

The complaint

1. Mr Z, on behalf of Mr X, complained the Council failed to explain the financial assessment process, disability related expenditure (DRE) and care charges; has not fully considered DRE’s during the financial assessment and has not provided reasonable adjustments to meet Mr X’s disability related needs.
2. The demand for payment from the Council has caused Mr X mental distress and has had a negative impact on his wellbeing.

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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. If we are satisfied with an organisation’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. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant’s representative;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant’s representative;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

6. Mr X is an adult with learning difficulties. He has received adult care services for many years. Prior to 2019, Mr X’s financial assessment resulted in him having a nil charge in respect of the care services he received.
7. In June 2019, a council financial assessment officer visited Mr X at his home to complete a new financial assessment. The visit was notified to Mr X by letter only and no-one else was present to support Mr X during the assessment. The letter explained the evidence Mr X would need to show during his financial assessment.
8. During the assessment at Mr X’s home, the financial assessment officer told Mr X he would have to make a financial contribution towards the cost of his care package and says this caused him to become agitated. She says that she did not therefore tell him how much his contribution would be. It is my understanding that the details of the assessment were subsequently sent to Mr X by letter.
9. The case notes completed by the financial assessment officer detail the consideration given to DRE’s during this assessment. The notes indicate that Mr X did not have all the necessary evidence to show the amounts of DRE. The notes say that an allowance of £15.34 was allowed for travel and that Mr X said he spent at least £60 per week. The notes indicate the Council would require a breakdown of Mr X’s journeys but nothing to suggest it offered to assist him to provide this information. DRE was also allowed for incontinence pads, chiropody, internet, mobile phone, scooter insurance, dietary requirements and private cleaning. It is not clear to me how or if the DRE amounts were explained to Mr X.
10. It is my understanding the Council notified Mr X of the outcome of the financial assessment and that he would be required to contribute £55.95 per week. While I am not clear how often the Council contacted Mr X about the payments, it is my understanding he has never regularly paid his contribution. The information provided indicates that an invoice was sent to Mr X dated 16 June 2022 demanding a payment of £5,840.48.
11. Information provided by the Council in response to my enquiries, shows a social care practitioner discussed unpaid contributions with Mr X in August 2020. Mr X said he was unwilling to pay because he wasn’t happy with the service being provided. The notes indicate that Mr X was not aware there was a complaints process or how to make a complaint. The officer provided Mr X with a link to the online complaints procedure and said he could arrange for another financial assessment to be completed. The notes say Mr X agreed to this and he stated that he was afraid he would give the wrong information like he believed he had done for the assessment in June 2019. The officer said he would look into whether Mr X was eligible for an advocate and Mr X said he would like an advocate. A referral to an advocacy agency was sent shortly afterwards.
12. A further financial assessment was carried out on 8 December 2020. Mr X, his advocate and Ms B, a friend were present at Mr X’s house. The financial assessment officer joined the meeting by telephone. I have seen notes of this meeting that were made by Mr X’s advocate. This shows the officer went through Mr X’s income and expenditure including items that could be considered DRE. At the end the officer said Mr X’s contribution would be £74.72. The notes indicate Mr X became distressed and unsettled. The advocate requested the officer sent documents so he could go through them with Mr X to explain the process. The Council included DRE allowance of £60.58 per week in this assessment.
13. An initial invoice for Mr X’s contribution was sent in December 2020. The Council says that Mr X has not made any payments and in January 2023 the debt was £6,438.24.
14. Mr Z wrote to the Council in March 2022 on behalf of Mr X about the outstanding balance for care charges. The letter said Mr X was not prepared to pay the invoice the Council had issued. He said Mr X could not afford to pay the invoice and that he had other debts. Mr Z also raised the issues about the lack of support for Mr X to understand the financial assessment and charges. Mr Z said the Council had failed to make reasonable adjustment to ensure that Mr X understood the situation.
15. In response the Council suggested it could make a referral to a debt advice service. It also said that it could not write off the outstanding balance on Mr X’s account and that it remained a valid debt. It said it would be willing to complete another financial assessment which could include DRE which may reduce Mr X’s weekly contribution.
16. Mr Z submitted a formal complaint to the Council in July 2022. The Council did not uphold the complaint. It took the view that Mr X had support at the financial assessment in December 2020 and that he has ongoing support at the day centre he attends to deal with his paperwork. It also said that a financial assessment review was taking place and would be finalised when Mr X provided some more information.
17. When I spoke with Mr Z about this complaint he told me that delay in finalising the financial review was due to a number of factors but that it was not due to any fault by the Council.

Analysis

18. This complaint concerns the financial assessment process for adult social care payments and how the Council explained this to Mr X who has learning difficulties. Mr X cannot read. He does have a text reader but his advocate, Mr Z, says that he still requires assistance with this to ensure he has understood what has been read out to him.
19. In this case we have exercised discretion to consider matters that are late. A late complaint is one made more than 12 months after the person complaining was aware of the events. We have exercised discretion in this case because of Mr X’s learning difficulties which meant he was not aware he could complain in 2019. The notes provided by the Council support this view. In August 2020 a social care practitioner had a discussion with Mr X which indicates he did not know he could complain or how to do this. It was only when an advocate was provided to assist Mr X that he was able to make complaints. I have therefore considered the financial assessment that took place in June 2019.
20. The Care and Support Statutory Guidance covers the issue of charging and financial assessment. It states that the overarching principle is that people should only be required to pay what they can afford. It then sets out several principles that charging needs to consider including ensuring people are not charged more than it is reasonably practicable for them to pay; be clear and transparent so people know what they will be charged; apply the charging rules equally so those with similar needs are treated the same; be sustainable for local authorities in the long term and promoted wellbeing, social inclusion, and support the vision of personalisation, independence, choice and control.
21. Councils can take disability-related benefit into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs it is not meeting. The Care and Support Statutory Guidance says any reasonable additional costs directly related to a person's disability should be included. While it provides examples of possible DRE, the list is not exhaustive and any DRE can be considered.
22. The information provided shows the Council wrote to Mr X about the meeting in June 2019 and did not provide this information in any other form despite knowing that he had learning disabilities. The information provided also shows that Mr X was not supported during the financial assessment which was difficult for someone with his disabilities.
23. The notes of that meeting indicate that while the officer told Mr X he would have to pay towards his care, she did not tell him the amount. Mr X had been receiving care for many years and had not previously had to make any financial contribution. This was a big change and required careful explanation to ensure Mr X understood why it was happening. It was also important that he understood the exact costs so that he could make decisions about his finances and the implications of this change. Having to find over £200 a month to maintain his care package has significant implications for money management. This is especially true when the person is on a fixed, single income.
24. I cannot say it was fault to charge Mr X for the care. The Council has done the assessment based on his income and explained that the change happened in 2019 because Mr X had been awarded a higher rate of benefit so increasing his income. However, I am not persuaded the Council provided appropriate support for Mr X to enable him to fully engage with the process and present the necessary information particularly about his DRE.
25. The Council, as a public body, has a duty under the Equality Act 2010 to make reasonable adjustments to ensure 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. This is a proactive duty and if the adjustments are reasonable, the Council must make them.
26. I have not seen anything which shows that in June 2019 the Council made any reasonable adjustments to ensure Mr X could understand and fully engage in the financial assessment process. The notes indicate Mr X got agitated and as a result the officer did not provide details of the actual charge. I have not seen evidence to show how the Council subsequently notified Mr X of the actual amount but assume it was by letter, as this was how he was notified of the meeting.
27. The failure to consider what reasonable adjustments Mr X may require to participate in the financial assessment process is fault. The notes show there were issues around the DRE amounts particularly the cost of incontinence pads and car expenses. I have seen nothing which suggest this was resolved to Mr X’s satisfaction. It is possible that if reasonable adjustments had been made in June 2019, Mr X may have better understood the financial assessment process and why he was being charged. The fault has caused distress, confusion and ongoing uncertainty for Mr X about the charges.
28. For the subsequent assessments, Mr X did not attend alone. The Council arranged an advocate for Mr X and on one occasion a friend also attended to support Mr X. I note that Mr X still has not paid for his care and a debt has accrued. However, I am not persuaded there was the same fault when the subsequent financial assessments were completed.
29. The Council is willing to review Mr X’s financial assessment and in particular the amount of DRE. I would encourage Mr Z to support Mr X to present the required information as soon as possible to enable the Council to complete this process.
30. The Council has considered the request to write off Mr X’s debt and decided it is payable. I am not aware of any formal debt recovery action taken by the Council but would encourage Mr X to take up the offer of money management/debt advice so that this can be resolved.

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Agreed action

31. To remedy the injustice caused to Mr X as a result of the fault identified in this case the Council will, within one month of my final decision, take the following action:
• Apologise to Mr X for the fault in respect of the 2019 financial assessment;
• Make Mr X a symbolic payment of £250 to recognise his distress, uncertainty and confusion; and
• Discuss with Mr Z and Mr X what reasonable adjustments are required and inform them of which adjustments it considers reasonable and is able to meet.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman