Summary: Ms X complains that she was billed for care that she did not receive and was not supported against financial abuse. There was fault by the Council because it did not include any contingency plan in Ms X’s care plan. The Council agreed a financial remedy to reflect the injustice caused to Ms X.

The complaint

1. I refer to the complainant here as Ms X. Ms X says she was billed for care she did not receive and was not supported against financial abuse. Ms X says:
• She did not receive the care she was assessed as needing
• She repeatedly had to complain because the same issues recurred
• She has no care plan and she was told she would be reassessed and have to pay more whenever she came to the Council’s attention or someone else tries to intervene on her behalf
• She was forced to use direct payments that she was unhappy about but agreed to use because she needed care

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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, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I examined the complaint and background information provided by Ms X and the Council. I sent a draft decision statement to Ms X and the Council. I considered the Council’s comments in response to the statement.

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What I found

The direct payment process

5. If a local authority agrees to fund some or all of a person’s care services, it will offer the person a choice of:
• providing services directly to the person
• giving money directly to the person to arrange and pay for care services themselves; or
• a mixed package with some services providing directly and others that are bought out of direct payments.
6. Before making direct payments, the local authority must be satisfied that all the following apply:
• the person who is entitled to a care package has needs which can be met using direct payments
• the payments will be made to someone who is capable of managing them (either alone or with the help available)
• either the person entitled to the care package agrees to have direct payments being made, or someone agrees on their behalf.
7. The person giving consent must:
• have a free choice, and
• accept the responsibilities resulting from their choice, and
• have the mental capacity to give consent.
8. To give consent a person does not have to be able to understand completely how direct payments work. Giving consent is not the same as being able to manage the direct payments. A person might be capable of giving consent to receive direct payments but still need support to manage the payments.
9. Direct payments are means tested. So how much a person receives in direct payments depends on their financial circumstances. There may be a need to contribute towards the costs with their own money.
10. The local authority will monitor the way a person uses direct payments, for example through an annual review.

Background

11. Ms X had a care assessment in 2019. Because of difficulties she had experienced with the care provider commissioned by the Council to provide her with domiciliary care, it was agreed between her and the Council that she would receive direct payments to pay for her care herself. She would be able to choose a care provider herself.
12. Ms X was assessed as needing 21 hours’ worth of care every week. She was financially assessed and had to contribute towards the care costs.
13. Ms X contacted her social worker in August 2019 to say that her care has stopped approximately a month earlier. She told the social worker she had received an incorrect invoice because she had not received the hours of care stated in the care plan. The social worker acknowledged receipt of her email around two weeks later.
14. The social worker passed Ms X’s email to the finance team. However, the finance team did not take any action.
15. Ms X continued to have problems with the attendance of the carers. I do not know why. But the reasons why the carers did not provide the assessed hours of care are not material to this investigation. What does matter is that the finance team continued billing Ms X for her assessed contribution while she in turn queried the bills because she was not receiving the full number of hours. This continued from the summer of 2019 to November 2020 when Ms X agreed to a stop of the direct payments.
16. The Council proposed a new care provider to Ms X in December 2020. When she did not respond to its proposal, it commissioned the service itself after a few weeks. Ms X then declined to proceed with the care provider. Ms X says she was unhappy with the care assessment and wanted to give the social worker a chance to rectify it. She did not know whether to articulate her needs with the social worker or ask for someone else who might listen to her.
17. Ms X asked the Council for a new social worker. In December 2020, it allocated a new social worker to her. The social worker contacted Ms X to arrange a new care assessment. Ms X declined to meet with her. Ms X does not recall this sequence of events.
18. In its response to Ms X’s complaint, the Council offered the contact details of one of its officers who could review Ms X’s records to establish whether she is entitled to any refund of the contributions she made towards the care service. This would involve examining her bank statements and the invoices of the care hours she received.
19. In its response to my draft decision statement, the Council emphasises it undertook a considerable amount of casework including face to face meetings with Ms X and the care provider to try and address any difficulties. It also asked Ms X on several occasions if she would like to change the care provider.

Finding

20. I find fault by the Council because the social worker who dealt with Ms X between the summer of 2019 and November 2020 did not reassess the operation of the direct payments Ms X received. While it is normally the case that direct payments give a person the ability to manage the care services they receive, it is evident that shortly after the direct payments started Ms X was again having difficulties with the care provider.
21. The action taken by the social worker was to inform the finance team when Ms X queried the invoices she received. This was wrong because it was not for the finance team to reconsider the operation of the direct payments. The finance team invoiced Ms X for her contributions on the understanding that she received 21 hours of care each week. If the hours she received were less than that then the finance team could not resolve the ongoing problems with the care provider. The point of direct payments is that it would be for Ms X to handle that herself.
22. But if a person cannot cope with managing direct payments themselves – that is to say there are problems with the commissioned service - then a local authority can direct them to available help through charities or organisations that act as managing agents for the direct payments. It could step in to offer help with the process or stop the direct payments.
23. I note the Council’s comments that its officer(s) discussed matters with Ms X and the care provider the Council to try and resolve any issues. This was the correct approach. However, the Council, in its complaint responses to Ms X, accepted it did not put contingency arrangements in place when the direct payment was agreed. The Council’s own finding lends credence to the finding I make here.
24. As to Ms X’s concerns about not receiving care or the lack of a care plan, I do not find fault by the Council. The papers show the Council allocated a new social worker to her and the social worker sought to establish her care needs with a view to commissioning the necessary care. I note Ms X does not recall the allocation of a new social worker but this is insufficient to overturn the evidence provided by the Council.

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Agreed action

25. Where we find fault by a council, we must go on to consider the injustice caused and a remedy for the injustice. Here, I find the Council failed to act to support Ms X with her management of the direct payment process. Had it acted earlier, it is likely it would have stopped direct payments sooner than it did in November 2020.
26. The Council agreed to a time and trouble payment of £250 to Ms X.
27. The Council should offer Ms X a review of the care contributions between 2019 and 2020 by a business support officer.

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Final decision

28. There was fault by the Council. The complaint was closed because the Council agreed to remedy the injustice caused to Ms X.

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Investigator's decision on behalf of the Ombudsman