Summary: There was no fault in the decision to stop Mr X’s direct payment. The decision was in line with relevant law and guidance and the Council’s direct payment policy and was because Mr X failed to pay his assessed weekly charge.

The complaint

1. Mr X complained about Bath and North East Somerset Council’s (the Council’s) decision to stop his direct payment. He said the Council failed to take into account his communication difficulties.
2. Mr X also complained about delays in the response to his complaint.
3. Mr X said the Council caused him avoidable distress and a financial loss because he had to pay personal assistants (PAs) privately.

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The Ombudsman’s role and powers

4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. Mr X’s complaint was about a decision to stop his direct payment in June 2020 and is not late because he complained to us within 12 months. However, the background concerns things that happened from 2017 on and which are relevant to the decision in 2020. So I have considered some evidence from 2017.
6. 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)
7. 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)
8. 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).
9. Virgin Care provides adult social care functions for the Council. Any fault I identify by Virgin Care in this investigation is fault by the Council.

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How I considered this complaint

10. I considered:
• Mr X’s complaint and the Council’s response
• His complaint to us
• Documents described later in this statement.
11. Mr X 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

12. A council must carry out an assessment for any adult with an appearance of need for care and support, applying national criteria to decide if a person is eligible for care. (Care Act 2014, section 9)
13. The Care Act spells out the duty to meet an adult’s eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18)
14. Where a council agrees a person has care and support needs which meet national eligibility criteria, it must issue them with a care and support plan which sets out their needs, explains which is an eligible need and says how much funding the person is entitled to. It should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
15. The care and support plan must set out a personal budget. A personal budget is a statement which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. (Care Act 2014, section 26)
16. Many people choose to have a direct payment. This is money a council gives a person so they can arrange and pay for their own care and support.
17. Guidance explains a council should review a care and support plan at least every year, on request or in response to a change in circumstances. The purpose of a review is to see how a care and support plan has been working and to decide if any revisions need to be made to it. The council should act promptly after receiving a request for a review. (Care and Support Statutory Guidance, Paragraphs 13.19-21 and 13.32)
18. Care and Support Statutory Guidance (CSSG) says:
• Councils need to be satisfied a person can manage the direct payment by themselves or with support (paragraph 12.21.) They can stop a direct payment if the person no longer appears to be capable of managing it with whatever support is necessary. (paragraph 12.69)
• Councils should only stop a direct payment as a last resort and should take all reasonable steps to address problems without ending payment. (paragraph 12.67)
• If there is a decision to stop a direct payment, there should be a review and revision of the care and support plan to ensure the plan is appropriate to meet needs. (paragraphs 12.68 and 12.81)
19. The Council’s direct payments policy says it may suspend or stop a direct payment if the person fails to pay their assessed financial contribution (charge) into the direct payment account.
20. Councils charge adults for care they provide or arrange. They follow law and guidance on charging in the Care Act 2014, associated regulations and Care and Support Statutory Guidance which set out how to carry out a financial assessment to work out a person’s charge.
21. Councils can carry out light-touch financial assessments. A light-touch financial assessment is where a council treats a person as if a full financial assessment has been carried out. If a council uses light-touch assessments, it must still be satisfied on the basis of evidence from the person that they can afford the charge. (Care and Support Statutory Guidance, paragraph 8.22)
22. Disability Related Expenditure (DRE) are expenses a person has to pay connected to their disability. They are an allowance in a person’s financial assessment reducing their weekly charge. DRE can include specialist items and services such as wheelchairs. They can include extra heating or laundry costs, equipment and aids and regular payments such as wheelchair insurance and gardening costs. Statutory guidance says:
• A council must leave a person with enough money to pay for necessary DRE to meet needs that are not being met by the local authority
• The care plan may be a starting point for considering DRE, but councils need to be flexible. (Care and Support Statutory Guidance Annex C, 39 and 41)
23. The law says reasonable adjustments should be made to enable disabled people to access services. (Equality Act 2010, section 20) Adjustments can be things like physical changes to the environment or they can be changes to the way an organisation communicates with disabled people.

What happened

Background

24. Mr X has eligible social care needs and has been receiving a direct payment which he uses to fund PAs to support him. The Council’s general practice is to pay recipients a direct payment net of their assessed care charge. So the person is expected to pay their weekly charge into a designated direct payment bank account.
25. Mr X signed a direct payment agreement in 2013. This said he must open a separate direct payment bank account to pay the direct payment into and he must pay his assessed weekly charge into the direct payment account.
26. The Council told me non-payment of the assessed charge had been an issue with Mr X since before 2015. The Council decided in July 2015 that it would pay the direct payment gross and invoice Mr X for the charge (so not its usual practice as set out in paragraph 24). The Council said this was to ensure Mr X had funds to pay his PAs.
27. I have seen copies of four-weekly invoices sent to Mr X from 2017 for his care charge. A final invoice was sent just after the Council stopped the direct payment in June 2020.

2017

28. The Council’s finance team wrote to Mr X at the end of July, referring to a recent meeting where Mr X said he would pay £120 every four weeks until he submitted a DRE claim. The letter included a detailed statement of account and explained he needed to pay the assessed charge pending any review/appeal of his DRE.
29. The finance team wrote to Mr X again in November saying he had not replied to the letter in July and the Council would start court proceedings if he did not respond within 14 days. The finance team sent a second letter in November setting out Mr X’s current charge and saying although he had made three payments in August, September and October, there had been nothing else and he had not submitted a DRE appeal. The letter went on to say Mr X needed to pay his weekly charge which was then £68.50.

2018

30. The Council’s legal team wrote to Mr X in February 2018 saying he owed just under £7000 for care charges between 2014 and 2017. This was a letter before action – a legal letter sent before issuing court proceedings.
31. A note from the Council’s finance team in February said he was refusing to sign a form to give consent to a financial assessment. (This meant the Council could still assess Mr X financially, but it could only use existing information it had on file about his income and capital - a so-called light touch financial assessment – see paragraph 21. It also meant the Council could not do a detailed assessment of Mr X’s DRE because he had not provided it with any information about his disability expenses.)

2019

32. A social care assessment in May 2019 described Mr X’s needs. The assessment noted Mr X’s communication difficulties: brain fog, repeating himself and losing his train of thought, needing time to process information and needing letters in a large font and on coloured paper. The assessment also said he needed relevant information to be written down to increase his ability to process it. The assessment gave Mr X’s weekly indicative personal budget.
33. A care and support plan in September summarised Mr X’s needs and outcomes. It set out the direct payment funding. The plan said Mr X used a direct payment support service to administer payments.

2020

34. Council officers and staff from Virgin Care met to discuss Mr X’s case in March 2020. They noted ongoing issues with non-payment of the care charge and that Mr X owed £14,000. They discussed the following:
• Mr X claimed to have autism, but there was no evidence from the NHS that he had a diagnosis.
• The Council was sending all letters in large font and on coloured paper because of Mr X’s communication difficulties
• There was no decision about whether to take legal action to reclaim the debt; the Council’s solicitor said proceedings would be the last resort.
35. Mr X complained to Virgin Care in March. The complaint was mostly about the attitude and approach of his former social worker. Virgin Care emailed him to ask for more information to enable it to respond fully. Mr X forwarded another copy of his complaint. Virgin Care did not take any action to follow up the complaint with Mr X.
36. There was a second professionals’ meeting in May to discuss Mr X’s direct payment. Mr X was reportedly refusing to sign a new direct payment agreement. The minutes noted he had previously refused commissioned care, but this was an option if the decision was to stop his direct payment.
37. A further care and support plan in May 2020 increased Mr X’s direct payment. Mr X’s social worker emailed him to say he needed to sign a new direct payment agreement. An email from Mr X in May said he would not sign a new direct payment agreement because it was based on an old care and support plan which did not meet his needs.
38. Mr X emailed the Council’s finance team in May to say he wanted a review of his financial assessment. He said he wanted to end the direct payment support service he had been using and would not sign a new direct payment agreement until the new financial assessment and a new social care assessment had been completed.
39. The Council wrote to Mr X at the start of June to say it intended to stop his direct payment because he had not paid the weekly charge and Mr X owed the Council over £15,000. The Council explained its direct payment policy required him to pay the charge and if he did not, then the Council had the right to stop the direct payment. The letter gave Mr X three weeks’ notice and said the Council would arrange care services to replace the direct payment.
40. A social worker carried out a review of the care and support plan in the last week of June. The form noted Mr X declined to take part in the review and so the social worker completed it using information from previous assessments and contacts from him as well as healthcare professionals. The record of the review said an autism assessment report in 2015 concluded Mr X did not have autism, but noted he found it difficult to express himself and could be misinterpreted. The review noted Mr X had recently asked for a financial assessment and that he wanted to keep his direct payment and did not want a commissioned service. The Council/Virgin Care had identified a care agency that would be able to provide carers to visit Mr X if he changed his mind about having commissioned care.
41. There was a further plan care and support plan dated June 2020 containing the same information as in the May plan. It noted the direct payment would stop at the end of June.
42. Mr X made a second complaint to Virgin Care in June. He said he did not agree with the decision to stop his direct payment, that the care and support plan did not reflect his health problems, that the Council had not carried out a full financial assessment and it had not considered the contractual responsibilities he had towards his PAs.
43. The Council stopped Mr X’s direct payment at the end of June.
44. As well as complaining to Virgin Care, Mr X also complained to the Council’s Director of Adult Social Care in June and July, raising similar issues. He said:
• He had been issued invoices for years which he had been contesting. Four years ago he challenged the charge but there was no resolution and he could not afford to pay.
• He met with a social worker and service manager in July and still wanted clarity about the weekly charge.
• A commissioned service would not meet his needs.
45. A service manager emailed Mr X at the start of July, referring to a recent call with him about his complaint. The email noted Mr X did not accept the direct payment had ended and was continuing to engage his PAs. And, the Council had been commissioning a care agency for Mr X and Mr X advised he did not want this contact to continue. The service manager said a new social worker would do a new social care assessment.
46. The Council responded to Mr X’s complaint in the middle of July saying:
• It had reassessed him in May 2019 and increased his direct payment in August 2019
• He asked for some changes to the care and support plan in October. A new social worker was assigned. She visited in the middle of October and a joint visit with the finance team was planned. However, the date had to be changed and then the pandemic happened. However, the Council increased his direct payment hours in April 2020
• The weekly charged was based on a financial assessment. He had been offered a full financial assessment in 2018 but refused to sign the form. There was a financial assessment review arranged in February 2020, but he was unwell and a further visit in March did not go ahead because of COVID-19. He contacted the finance officer in June and she replied setting out the documents for him to provide in order for a financial assessment to happen. (The letter went on to explain the financial documents Mr X needed to provide. It also explained Mr X’s current DRE allowances)
• The Council paid his direct payment gross since 2015 and has invoiced him for the weekly charge. He only paid £820 in 2017-2018. The total debt was £15,700.
• He refused to sign a new direct payment agreement and this was required by regulations. And he had a large debt. This was the reason for stopping the direct payment.
• He had complained to Virgin Care in March, but the complaint was not actioned. The Council was sorry for this
• He was allocated a new social worker and there would be a fresh assessment
• He was told what he needed to do if he wanted the direct payments to continue (pay the arrears and sign the agreement)
• A commissioned service was an option for him if he wanted this.
• His disagreement with the care and support plan was not a legitimate reason for refusing to sign the direct payment agreement
• He was not diagnosed with autism in 2015, but staff were aware of his traits and their impact.
47. The Council’s legal team wrote to Mr X at the end of July to say he owed just under £16,000. The letter said he could repay by instalments and asked him to get in touch, otherwise the Council would be starting court proceedings. Mr X responded saying he had been disputing the charge for years and he could not afford it. He said he had not received letters about the unpaid charge in previous years. The legal team responded sending Mr X further copies of prior correspondence about the charge.
48. Mr X continued to pay his PAs privately. A social worker from a different team started a new social care assessment in August. The assessment referred to Mr X’s PAs giving one month’s notice in the middle of October and to him being willing to consider a commissioned service. The assessment noted Mr X’s difficulties in social interaction and communication and gave further details of these, referring to an autism assessment in 2015. Mr X had an advocate to support him at the assessment. The assessment included recent information about Mr X’s health conditions. The social worker consulted with health professionals caring for Mr X and his PAs and information from them was included in the assessment. The outcome of the assessment was Mr X still had the same eligible needs as in the previous assessment in 2019. The social worker considered Mr X’s needs could be met by a care provider who could provide consistent, skilled carers.
49. Records from the finance team indicate that in summer 2020, Mr X provided copies of the information the finance team needed to reassess his weekly care charge. In November, the finance team wrote to Mr X setting out the charge and how the Council calculated it. It included weekly DRE of £16.60. The charge was backdated to April 2020.
50. There was a review of Mr X’s care and support in November. Mr X and his PAs attended as well as senior officers from the Council and staff from Virgin Care. Mr X was now willing to sign a new direct payment agreement. The minutes noted Mr X was told the direct payment would be made net of his weekly care charge and he needed to pay the charge into his direct payment bank account. He also signed a waiver agreement which was discussed. This explained what would happen if he did not pay the weekly charge. Officers explained the Council would issue debt proceedings for the unpaid monies.
51. Mr X now has a direct payment in place.
52. Since starting my investigation, the Council issued court proceedings for the debt Mr X owes.

Was there fault?

53. There was no fault by the Council. It was entitled to stop Mr X’s direct payment in June 2020 in line with its direct payment policy because he had not been paying his weekly care charge for several years and a large amount was owed.
54. The Council took appropriate steps before stopping the direct payment, in line with the law and guidance described in paragraphs 13, 17 and 18. In particular, the Council:
• Wrote numerous letters over several years setting out the charge and offering Mr X the chance to repay the debt by instalments
• Offered a fresh financial assessment, which Mr X did not engage with until 2020
• Reviewed Mr X’s care and support plan before stopping the direct payment
• Explained why he needed to sign a new direct payment agreement
• Put in place a care agency to meet Mr X’s eligible needs after it stopped the direct payment
• Discussed the decision with Mr X in advance and made every effort to work with him before ending the direct payment.
55. I have no grounds to criticise the Council for starting legal proceedings. It is entitled to reclaim debt to the public purse. The Court is the appropriate forum for Mr X to dispute the debt or to raise any objections to the way the Council has managed the debt case.
56. The records indicate officers were aware of Mr X’s communication issues as set out in his social care assessments and in the records of meetings and discussions. The Council noted Mr X’s communication difficulties and officers have met with him and his PAs and advocate and spoken with him to explain clearly his rights and responsibilities. I find the Council has made reasonable adjustments in line with its duty under section 20 of the Equality Act 2010 and so there was no fault.
57. Virgin Care did not follow up Mr X’s failure to clarify his complaint of March 2020. This was a minor fault which caused avoidable confusion at the time. The Council has now provided a substantive response to Mr X’s concerns and as this remedies the confusion, further action is not required.

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Final decision

58. There was no fault in the decision to stop Mr X’s direct payment. The decision was in line with relevant law and guidance and its direct payment policy and was because Mr X failed to pay his assessed weekly charge.
59. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman