Pre-enforcement: consider the defaulter: customers with health issues
The Equality Act 2010 requires creditor organisations to make reasonable adjustments to any of its provisions/criteria if a customer is known to be suffering from a disability. Customers with mental health issues can be considered to have a disability if their impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
The act defines the long-term effect of an impairment as either one:
- which has lasted for 12 months
- where the total period for which it lasts is likely to be 12 months
- which is likely to last for the rest of the life of the person affected.
Please be aware that the lists of disabilities and mental health conditions below are not exhaustive.
A disability can arise from a wide range of impairments which can be:
- sensory impairments, such as those affecting sight or hearing
- impairments with fluctuating or recurring effects such as rheumatoid arthritis, ME/chronic fatigue syndrome (CFS), fibromyalgia, depression and epilepsy
- progressive, such as motor neurone disease, muscular dystrophy, forms of dementia and lupus (systemic lupus erythematosus (SLE))
- organ specific, including respiratory conditions, such as asthma, and cardiovascular diseases, including thrombosis, stroke and heart disease.
Mental health conditions
Mental health illnesses fall into two main categories: Neurotic and Psychotic.
Neurotic people are still aware of reality even though distressed.
- Depression - a long lasting, low mood that interferes with the ability to function or take an interest in things.
- Anxiety - where normal feelings of concern, worry and fear are intensified to a debilitating level and can bring on physical symptoms such as heart palpations and pain.
Anxiety-related conditions include the following.
- Panic attacks - defined as a sudden episode of intense fear or discomfort accompanied by physical symptoms such as nausea, chest pains, unbearable fear and shortness of breath.
- Phobias - an over intense fear of a situation or an object that generally wouldn’t worry others to the same extent. People who suffer from phobias are afraid of the feelings they experience when they get anxious. In fact it’s a fear of a fear.
- Obsessive Compulsive Disorder (OCD) - the name given when someone has obsessions, compulsions or both, with the individual usually being aware of these being excessive or unreasonable but nonetheless being so pervasive as to interfere with the ability to function.
It is estimated that depression and anxiety will affect around 10 per cent of people at some point in their life.
- Dementia - a degenerative disorder increasingly affecting the individual’s ability to function to the extent that they become entirely dependent on others. It is not strictly a mental health condition but is a name for a group of diseases that affect the normal working of the brain. Alzheimer’s disease is the most common cause of dementia.
- Post Traumatic Stress Disorder (PTSD) - often linked to military or emergency services but defined as any event resulting in a person being adversely affected by what they have experienced; people can suffer from flashbacks, panic attacks and other acute symptoms.
- Eating disorders
Other conditions, although not regarded as mental health issues, are considered a mental impairment and as such will be covered by the Equality Act 2010 such as:
- autism - a lifelong developmental disability that affects how a person communicates with and relates to others
- dyslexia - a very broad term defining a learning disability that impairs a person’s fluency or comprehension accuracy in being able to read
- Asperger’s syndrome - a form of autism that causes difficulties with communication.
Psychotic involves the loss of the shared reality - a person unable to distinguish their own intense thoughts, ideas, perceptions and imaginings from reality. Examples include:
- bipolar disorder (formerly known as manic depression) - a severe mood disorder characterised by extreme highs (mania) and lows (depression) with normal moods in between, although the pattern of mood changes can vary
- Schizophrenia (psychosis) - the customer may experience episodes involving a combination of symptoms including disordered thoughts; difficulty in concentrating and following instructions; delusions; hallucinations; apathy and poor social functioning.
Disclosure of a health condition
Customers may be reluctant to disclose a health condition. However, it is important for HMRC to hold such personal data on our files. To do this the law requires us to ask for the ‘explicit consent’ of the individual first. If you are told about a condition you may find the TEXAS technique useful (see below).
- Thank them for the information treat the customer with empathy and tact. A simple statement along the lines of “Thanks for telling me that. It will help me deal with this matter in the most appropriate way” will suffice.
Explain how their information will be used (this is a legal requirement); you should:
- explain that it will allow us to deal with the case as efficiently as possible, and be more responsive to their needs; it will also save them having to repeat this information to any other members of staff at a later date when speaking about the debt in question
- inform the customer that the information will be stored in a note on our system and shared with other HMRC staff that can access that system
- EXplicit consent: request the customer’s consent to record information about their mental health. Confirm that they understand this and ask for their permission to use any information to enable us to handle the case properly. Once you have the customer’s consent, record an Action History Note against all open Work Items and also make a note at the top of the Notes / Assets screen on IDMS and ensure that this note remains at the top of the page if / when further notes are recorded. If consent is denied explain that we will be far better placed to help them if we have all relevant information otherwise this may compromise our efforts to provide the best customer service or even deal with them in the most appropriate manner.
Ask the right type of questions:
- what is the nature of your condition?
- does it affect your ability to manage your financial affairs - if so, how?
- does it affect your ability to deal or communicate with us - if so, how?
- does anyone help you manage your finances, such as a family member - if so, what arrangements are in placed for this person to deal with us on your behalf?
Afford the customer time to ask questions of you.
Signpost them to a free advice agency for practical and emotional help such as:
- TaxAid (0345 120 3779)
- Citizen Advice (03444 111 444)
- Citizens Advice Northern Ireland (0800 028 1881)
- Business Debtline (0800 197 6026)
- StepChange Debt Charity (0800 138 1111)
- National Debtline (0808 808 4000)
- Payplan (0800 280 2816)
Following the above guidance will ensure that are staff are compliant with the Data Protection Act 1998 which requires organisations to collect, use, retain or dispose of personal data fairly and legally. Under the Act, information about health is considered sensitive personal data and is subject to more stringent restrictions.
Asking customers about mental health
In some cases customers may not disclose a mental health condition, but you may notice something in their behaviour that indicates that they are experiencing some form of distress. Some common indicators of a condition are that the customer may:
- appear or sound distressed, disturbed or distracted
- be talking incoherently or laughing inappropriately
- appear to be having illogical or irrational thought processes
- seem over-excited, euphoric, irritable or aggressive
- sound or look dazed, withdrawn or switched off
- be fidgety, restless or jumpy
- keep repeating themselves or obsessing
- not appear to be taking information in
- appear to respond to experiences, sensations or people not observable to others
- be telling you things that they believe to be true but in reality are extremely unlikely.
If you notice or suspect that a person may have mental health issues, ask them - do not make assumptions and do not make a diagnosis. Be honest and sensitive and keep the conversation open.
You may consider asking questions such as:
- “Other than the outstanding tax situation is there anything else in particular causing you to feel like this?”
- “Is there anything specific in terms of your health or personal circumstances that impacts on your situation?”
If the customer chooses not to take advantage of this opening to confide in us then we should not push them on this.
Emotional distress including suicidal threats
Any expressions of suicidal intent should be acted upon immediately. If you are concerned someone is suicidal you should:
- let them know that you take them seriously and treat them with respect. Listen and show that you are listening at every opportunity. When we are listening actively to someone we respond in a way that explicitly shows ‘I heard what you said, I care and I want to know more’
- avoid arguments and aim to communicate with patience, sympathy and acceptance. Be prepared to summarise back to the person things they have shared about their circumstances and feelings; for example, “So, things have got much worse since you lost your job and fell behind with your payments - is that right?”
- give the person the opportunity to explain why they feel this way. We can acknowledge feelings by saying what we see and hear: “I can hear how upset you are”, “I can hear the anger in your voice”. Acknowledging suicidal thoughts and feelings does not reinforce the idea in people’s minds.
If you identify that someone is suffering from personal distress make a sensitive referral by saying something like “You mentioned earlier that you felt suicidal - would you find it helpful to talk to the Samaritans?” Referrals can also be for emotionally charged people, it doesn’t have to be a suicide case. Anyone can contact the Samaritans on 116 123 in the UK or ROI (Republic of Ireland). If you are particularly worried about a person you can make a third party referral with the customer’s permission and appropriate time for the Samaritans to call them.
In the most extreme of cases where you feel the threat of suicide is real then you may consider involving the emergency services. It is not possible to define ‘extreme of cases’ but the emotional distress would need to be at a level that it could be viewed as a risk to safety or health.
Samaritans offer advice on how not to exacerbate the situation. You should avoid:
- offering any reassurances that things will get better or are not that bad
- telling someone you know how they feel
- attempting to try to solve the problem or come up with lots of possible suggestions
- minimising a person’s problems by comparing them to those of others.
If the caller hangs up before you are able to pass the call or calm them down then you should discuss the appropriate course of action with your manager.
It is important to remember that you should not feel responsible in any way for the debt situation the customer is in and your job is to help the customer based on their individual circumstances and work out a solution that results in payment of the debt according to their needs.
Everyone reacts differently to distressing situations, often based on personal experience, and you may need some time to recover after taking an upsetting call. If you feel that you have been affected after taking a distressing call, then you should discuss this with your manager so you can discuss your feelings and agree the most suitable course of action. Above all it’s important to remember you are not responsible for another person’s actions.
Dealing with third parties
In cases involving a health issue you may receive contact from a third party. This may include:
- friends, relatives or carers
- voluntary sector organisations
- health professionals and social care professionals.
Where a third party has consent from the customer to speak to us we should try and speak to them and resolve any issues as much as possible. While we should never discuss a client’s case with a third party who does not have appropriate authority this does not mean that we should immediately stop listening to anything the third party has to share. However, if you feel that no progress is being made with the third party then you should contact them either explaining what you intend to do next or giving them the opportunity to respond before you take any further action. If you have any doubt about whether it is appropriate to contact the customer directly in these circumstances follow the guidance in the ’Customers who need extra support’ section below.
Who can make decisions when the person does not have the mental capacity?
In rare cases the third party may explain that even if reasonable adjustments are made the person would still be unable to deal with their tax affairs. In these circumstances you must not disclose any information to the third party unless they can provide one of the following documents.
- A letter signed by the person that explicitly authorises a named individual or organisation to act on their behalf.
- A document granting Power of Attorney.
- An order of the Court of Protection (in England, Wales and Northern Ireland) or an Intervention Order or Guardianship Order (in Scotland under the Adults With Incapacity (Scotland) Act 2000) appointing the named individual to either deal specifically with the person’s tax affairs or their financial affairs in general.
Who can make decisions when the person does not have the mental capacity and there is no power of attorney?
There may be difficulties when a person does not have the mental capacity to give consent. For example, they may be suffering from Alzheimer’s or dementia and unless someone has a lasting power of attorney then their tax affairs cannot be dealt with by another person on their behalf.
The Court of Protection makes decisions for people who are unable to do so for themselves. It can also appoint someone (called a deputy) to act for people who are unable to make their own decisions. These decisions are for issues involving the person’s property, financial affairs, health and personal welfare.
Asking the customer for evidence of their health condition
In some cases we may require the customer to provide evidence of their health condition to help us decide on the appropriate action to take. Generally, we will not require the customer to submit evidence unless we are considering remission.
Where it is appropriate to obtain evidence you need to:
- explain what evidence you require - as a minimum, evidence needs to include a confirmation of the nature of the illness and how it affects their ability to carry out their normal day-to-day activities, particularly in relation to their ability to manage their finances
- allow time for the evidence to be collected
- suspend unnecessary contact with the customer whilst they collect the evidence.
Evidence of a customer’s health condition can come from a number of sources. Acceptable sources include:
- a doctor
- any health professional
- a social care professional
- a voluntary sector organisation, such as Citizen’s Advice / TaxAid / TaxHelp for Older People (TOPS) - providing that they have satisfied themselves, from one of the sources above, that the health condition is genuine.
Cases involving mental health and the evidence form
Evidence can come in a variety of written forms, but in order to make sure that we have the information you should send a copy of the Debt and Mental Health Evidence Form (web) to be completed. This must also be accompanied by the consent form (web).
The DMHEF should only be used where the customer has mental health issues that affect their ability to manage their finances. As some health professionals may charge for completing the DMHEF we cannot insist on it. As an alternative, written evidence from any of the sources mentioned above would be acceptable, but it would need to include, as a minimum, information describing the nature of the illness and how that illness affects the person’s ability to carry out their normal day-to-day activities, particularly in relation to their ability to manage their finances.
The first indication of a problem may arise from a phone conversation. You may find a letter along the lines of the following useful. It can be adapted to suit individual circumstances.
“Following conversations you had with one of our officers on (insert date) please find statements attached showing the current position. In order to resolve the situation we need to discuss this.
You told me that you are currently under medical care. To deal with your case as efficiently as possible and be more responsive to your needs it would be helpful if I knew more about your health and how it affects your ability to deal with us and manage your finances. For this purpose I have enclosed a form for your health or social care professional to complete on your behalf.
If you find it would be helpful to speak to me direct I am happy to do so. Please provide me with your contact number and let me know a convenient date and time for the phone call to take place.
If you find it difficult speaking to us directly you may prefer to contact a free independent organisation for help with your financial situation. There are a number of organisations that may be able to help you manage your finances and develop a strategy to manage your debts. There are various organisations offering free independent advice such as:
* TaxAid - Tel No. 0345 120 3779 * Citizens Advice - Tel No. 03444 111 444 * Business Debt Line (BDL) - Tel No. 0800 197 6026 * StepChange Debt Charity - 0800 138 1111” * Payplan – 0800 280 2816
Recording evidence received
When you receive medical evidence you should summarise the information on IDMS notes. If a VAT debt is involved you should arrange for the Debt and Mental Health Evidence Form (web) and consent form (web) (or other acceptable medical evidence) to be scanned onto Electronic Folder.
When deciding how to deal with and progress cases involving health conditions your focus should be on how the condition affects the customer’s ability to deal with their finances and not on the fact that a condition may exist. Depending upon the circumstances likely actions will include:
- considering / accepting a time to pay arrangement
- deferring collection for an agreed amount of time
- taking legal proceedings
Just because a customer has a health condition it does not mean that remission is automatically appropriate nor that legal proceedings are out of the question. Other factors such as the asset position, current working status and income and whether liabilities are accruing will also be important considerations.
If, on the strength of the evidence, you decide that remission is appropriate you should use Type 10. When coming to a decision you must consider the asset position. If the customer has no ability to pay but has an asset such as a property we may be able to obtain a charge on this.
Customers who need extra support
In most cases, it should be possible to resolve cases locally through the line management chain; however, some customers may need extra support from the Needs Enhanced Support (NES) teams; see DMBM585180 for information on when and how to refer to NES.