Summary: Mrs X complains about the Council’s handling of her son’s financial assessment, which she says resulted in a delay in setting up his direct payments and his aunt no longer being willing to take on the role of his personal assistant. The Council accepts it mishandled the financial assessment. It has apologised and agreed to backdate the direct payments. The Council failed to take account of its duties under the Equality Act 2010 by sending him a financial assessment which did not take account of his personal financial circumstances or his need for support with the process. The Council needs to apologise for the avoidable confusion and distress caused. It also needs to take action to ensure it takes proper account of its duties under the Equality Act when doing financial assessments.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains about the Council’s handling of her son’s financial assessment, which she says resulted in a delay in setting up his direct payments.

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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. 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)

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How I considered this complaint

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

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What I found

What happened

5. Mrs X’s son, Mr Y, has autism and obsessive compulsive disorder. The Council completed its assessment of Mr Y’s needs on 31 May 2022. It agreed to pay him a personal budget of £50.80 a week as a direct payment, so he could employ a personal assistant for four hours a week to help him develop practical skills relating to:
• maintaining personal hygiene;
• managing and maintaining nutrition;
• maintaining a habitable home.

An aunt had agreed to take on this role.

6. The Council referred Mr Y for a financial assessment on 1 June. It wrote to him on 23 June saying it had completed a financial assessment based on information from the Department of Work and Pensions. It said he needed to pay £51.38 a week from 11 April 2022 until his 25th birthday in June, after which he had to pay £47.89 towards his direct payment. It said he should pay this money into his direct payment account. The Council invited Mr Y to provide evidence if any of the information was incorrect or if he was paying rent or council tax. It told him he could ask the Council to review the charge if he disagreed with it and provided details of the appeal process. It asked Mr Y to sign and return a declaration, with the required evidence. It said his direct payment could be at risk if he did not do this.
7. Mrs X called the Council on 27 June to complain about the financial assessment. She said Mr Y would not understand the letter it had sent to him.
8. The Council acknowledged Mrs X’s complaint on 28 June. It said it would respond by 26 July.
9. The Council wrote to Mr Y on 28 July saying it would arrange a financial assessment. It asked him to confirm the name of anyone representing him. It also invited him to ask questions if he needed clarification, but did not include a telephone number other than that for the arrears section. The Council asked him to sign and return a copy of the letter to confirm he had received it. It also included space for his representative (Mrs X) to sign the letter.
10. The Council also sent a letter to both Mr Y and Mrs X. Among other things, this said Mr Y needed to sign and return the other letter dated 28 July, so it could progress his financial assessment and application for a direct payment. It said their complaint remained open and it would respond in due course.
11. Mrs X contacted the Ombudsman on 29 July. We told her the Council needed the opportunity to respond to her complaint, so she e-mailed it on 2 August.
12. The Council did a financial assessment for Mr Y on 16 August, which Mrs X attended. It decided Mr Y did not have to contribute towards the cost of his care. This reflected the fact he pays rent to his parents.
13. When the Council replied to Mrs X’s complaint on 30 August, it said:
• the 1 June referral for a financial assessment had said Mrs X managed her son’s finances but she was not listed on its system as a “financial agent”;
• another referral for a financial assessment on 22 June did not say anyone was managing Mr Y’s finances;
• it apologised for not consulting Mrs X about her son’s financial assessment because it had failed to update its system to show her involvement; and
• as Mr Y did not have to contribute towards the cost of his care, it did not have to consider his personal disability related expenditure, having given him a standard allowance of £17 a week.
14. The Council identified these lessons arising from Mrs X’s complaint:
• the form of authority document and consent process for financial assessments needed to be provided and explained early in the process; and
• the financial assessment process needed to be clearly explained with the relevant information and an opportunity to ask questions.
15. Mrs X tells me the Council has now agreed to backdate Mr Y’s direct payments to when he first went on the waiting list with its Autism Service (September 2021). She says her sister is no longer available to act as Mr Y’s personal assistant, so they will have to find someone else.

Legal and administrative background

16. 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.
17. 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.
18. The ‘protected characteristics’ referred to in the Act include disability.
19. The reasonable adjustment duty is set out in the Equality Act and applies to anybody 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.
20. 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.
21. 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.
22. 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.

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

23. To take account of its duties under the Equality Act, the Council needs to identify any reasonable adjustments it might need to make at the start of the process. This would include identifying a representative or the need to do an in person financial assessment. 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).
24. The Council had an opportunity to do this when it assessed Mr Y’s needs in May, but failed to do so. It sent him a financial assessment which did not take proper account of his personal circumstances, neither his financial circumstances nor his need for support with the process. It initially asked him to pay £51.38 a week, which was more than his personal budget of £50.80. This caused avoidable confusion and distress to Mr Y and Mrs X. It also contributed to the delay in setting up the direct payments, which meant Mr Y’s aunt was no longer available to support him. The Council needs to apologise to them both. It also needs to review the way it deals with financial assessments to make sure the process takes account of its duties under the Equality Act.

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Agreed action

25. I recommended the Council:
• within four weeks writes to Mr Y and Mrs X apologising for the avoidable confusion and distress it has caused; and
• within eight weeks identifies the action it is going to take to make sure the financial assessment process takes account of its duties under the Equality Act 2010.

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Final decision

26. 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