Summary: There was fault by the Council in the failure to review Mr Y’s direct payment and to review his care and support plan. The Council has apologised, written off part of a debt and not reclaimed unauthorised expenses. This is an appropriate remedy for the avoidable distress.

The complaint

1. Mrs X complained in her own right and for her adult son Mr Y. On behalf of Mr Y, she complained the Council failed to:
1. Monitor his direct payment (DP) account annually, contributing to or causing a debt of £5000
2. Apply disability related expenditure (DRE) and housing costs in the financial assessment from 2019
3. Produce care and support plans reflecting changing needs
4. Include a contingency plan in Mr Y’s most recent care and support plan
5. Progress an application for supported housing from 2016
2. In her own right, Mrs X complained the Council failed to:

f) Support them (her and her husband Mr X) as carers (provide respite care)

g) Provide information on the Council’s complaint procedure.

3. Mrs X said this caused a financial loss, avoidable distress, time and trouble and a loss of respite services which would have enabled her and her husband Mr X to have a break from their caring role.

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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. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. We call complaints that haven’t had a response from the council ‘premature complaints.’ However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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’. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
7. It is our decision about starting or ending an investigation. We may not start or continue an investigation if we decide there is no worthwhile outcome achievable or there is no or insignificant injustice. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
8. 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(1), as amended)

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What I have and have not investigated

Complaints I have investigated

9. I have investigated points (a) (b) and (c) which are late complaints made on behalf of Mr X who is an adult who lacks mental capacity to complain. The rule in paragraph four does not apply to these complaints.
10. I have investigated point (f) between February 2024 and February 2025. The failure to provide respite care before then is a late complaint and I have not investigated it for the reasons in the next paragraph.

Complaints I have not investigated

11. I have ended my investigation of the following matters:
• Point (d) because it happened after the Council responded to the complaint and is therefore premature. Mrs X needs to complain to the Council first and it is reasonable for her to do so.
• Point (e) because an investigation is not practical. Mrs X told me she did not complain sooner for health reasons, a death in the family and she was aware that it would likely take many years to find a suitable placement with a vacancy, so she did not pursue a complaint to the Council or the LGSCO sooner. I have considered what Mrs X has told me and weighed this against the difficulty of investigating from 2016. Our Guidance on Jurisdiction explains historic allegations are where so much time has passed that an investigation is likely to be impeded by the passage of time. There would be difficulty in establishing causation over almost a decade if I were to investigate and find the Council to be at fault, there would likely not be evidence available to say whether or not there was an injustice. This is because records about available placements so far back and their suitability for Mr Y would not exist.
• Point (f) before February 2024 because this is a late complaint with no good reasons. Mrs X said in an email in February 2024 that she had not had respite care since 2021. She was aware that she was not getting respite/carer’s support from 2021 onwards. She said she raised it in a meeting with Y’s new social worker in October 2023 and again in a letter in February 2024. I consider it was reasonable for Mrs X to have complained to the Council within 6 months of the last respite provision and to us within 12 months so by 2022. She did not complaint to us until February 2025.
• Point (g) because the Council apologised in its letter of 30 September 2024 for not providing information about its complaint procedure. This is an appropriate remedy for the injustice and I could achieve nothing further by investigating.

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How I considered this complaint

12. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
13. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

14. A council should review a care and support plan at least every year, upon request or in response to a change in circumstances (Care and Support Statutory Guidance, paragraph 13.32)
15. Councils charge for care and support following charging regulations in the Care Act 2014 and Care and Support Statutory Guidance.
16. Councils must be transparent so people know what they will be charged. There should be enough information available so they can understand any charge. (Care and Support Statutory Guidance, paragraphs 8.2 and 8.3)
17. For home care, the law says a person should be left with a certain income after any charge. This is called the minimum income guarantee. The financial assessment looks at a person’s income from benefits, salary and pensions and any savings they may have. It disregards some disability benefits and reduces the charge if the person has disability related expenditure.
18. 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 and reduce 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. 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. It may be reasonable not to allow for an item where a cheaper alternative is available. (Care and Support Statutory Guidance, Annex C, Paragraphs 39 and 41)
19. The Council allows a minimum weekly DRE of £25 for everyone receiving non-residential care and support. Its policy says if a person thinks they have DRE of more than £25, there is space on the financial assessment form to tell it and the Council will then consider whether it will allow more than £25.
20. Direct payments (DPs) are money a council gives to an adult to arrange their own care and support. Another adult can manage a person’s DP on their behalf. Statutory guidance requires councils to monitor DP usage at least every year. It suggests DP monitoring can be aligned with the person’s yearly care and support plan review. (Care and Support Statutory Guidance paragraph 12.24)

What happened

21. Mr Y is an adult who has a learning disability. He lived with his parents until September 2024 when he moved into a council-arranged supported living placement. He receives a DP for care and support provided by a Personal Assistant which Mrs X manages for him.

Direct payment monitoring (direct payment finance review)

22. A group of managers met in December 2023. They noted and discussed:
• Non-payment of the charge at just over £5000.
• Bank transfers from the DP account into Mrs X’s personal bank account, which Mrs X said she used to pay for food and drink when Mr Y was in a coffee shop with his Personal Assistant
• The DP account was low on funds due to non-payment of charge and large expenses being claimed.
23. Managers decided the unpaid charge was recoverable and Mr Y also needed to have a new financial assessment. The panel agreed the Council would not recover the money spent on food and drink.

Financial assessment

24. The Council completed yearly financial assessments for Mr Y and wrote to Mrs X informing her of the outcome. The 2019 letter informed Mrs X she needed to pay Mr Y’s contribution into his direct payment account. The FA in 2019 allowed a tailored DRE of £35 made up of:
• health and wellbeing (replacement clothing, entertainment: £10)
• help in the home (laundry: £25)

The FA said Mrs X did not declare any DRE in respect of equipment, fuel, utilities, hobbies and leisure and legal charges.

25. The Council reviewed Mr Y’s financial assessment each year between 2020 and 2023 to take into account increases in income from benefits. It wrote to Mrs Y advising her of adjustments to the charge. Each letter reminded her to tell the Council if Mr Y’s DRE had changed.
26. In February 2024, the Council carried out a further review of Mr Y’s financial assessment in response to information Mrs X provided.
27. Managers from the finance team considered Mrs X’s application. They considered Mr Y’s care and support plan and decided:
• Not to allow mortgage costs as the mortgage was in Mr and Mrs X’s name
• To allow DRE for laundry, replacement clothing, glasses, swimming and parking at leisure centre, coffees shop treat (socialisation) magazines (encourages exercise)
• Not to allow holiday cost with parents as this was not an additional cost associated with disability
• To backdate additional DRE to August 2023 which was the date of the review request.
28. Mrs X was notified of the outcome of the DRE review in February 2024 and of the new DRE allowances for Mr Y:
• Getting around: £25
• health and wellbeing: £4.81
• health and wellbeing: £10
• help in the home: £9
• hobbies and leisure £20
• hobbies and leisure: £6.47
• other: £1.74

The Council backdated its decision to August 2023.

29. Mrs X was also informed that the Council would not recover the food and drink expenses and the social work team would complete a review of Mr Y’s care and support.
30. Mrs X wrote to the Council’s finance team in April 2024. She said she was previously unaware of the specific expenses which counted as DRE in the financial assessment. She said if she had been made aware then Mr Y would not be facing a bill of £5000 as his DRE had not changed since 2019. She said the Council was poor at providing up-front information. She also said the Council had not reviewed Mr Y’s care and support plan for several years and the Council had not provided for housing costs in the FA. She asked the Council to consider the family’s special circumstances: they rented a property while waiting for a supported living placement and then bought another property.
31. Having received no response to her letter, Mrs X chased the Council in June and said she wanted to make a formal complaint, having received an invoice for around £5000. The Council replied saying it had sent her a response on 16 May.
32. The Council has sent me a copy of a letter dated 27 February 2024. The date must be wrong because it is a response to Mrs X’s letter of April 2024. The letter said she had not contacted the Council sooner to tell her about changes to Mr Y’s circumstances. For this reason, the changes to the charge were backdated to the date of Mr Y’s care review.

Care and support plan

33. Mr Y’s care and support plan of September 2024 was drawn up at the point of his move to supported living and reviewed shortly after he moved in. The plan describes his needs and how these are to be met with commissioned services and a direct payment managed by Mrs X. It said food and mileage costs are not included in the DP and any queries about what the DP can and cannot be used for are to be directed to the social care team.

Respite care/carer’s support

34. Mrs X emailed the social worker in February 2024 and asked for a review of Mr Y’s care and support.
35. The social worker noted in August 2024 they had offered to complete a carer’s assessment twice with Mrs X but she had declined.

The Council’s response to the complaint

36. The Council’s complaint response in September 2024 said:
• It had not provided clear advice about whether she could pay for meals and refreshments using the direct payment. It should have resolved the issue some time ago. It was sorry for the confusion caused. It had not sought to recover costs and Mr Y had a new care and support plan which resolved the issue
• It failed to review Mr Y’s DP in line with paragraph 12.34 of CSSG. If reviews had taken place, the issue of meals and refreshments could have been resolved mush sooner rather than being allowed to continue
• She signed each page of the DP agreement in 2014. It said she agreed to pay charges into Mr Y’s DP account. She failed to do so. The first time Mr Y was liable to pay a contribution was April 2019. The Council sent her a letter with the client charge. This put her on notice that she needed to pay the charge
• If the DP had been reviewed earlier, the non-payment issue would also have been picked up. None of this negated her responsibility to pay the charge.
• If the DP recipient was liable to pay housing costs, then the Council includes an allowance for these in the FA. This was not the case for Mr Y. A parent’s housing costs could not be included in Mr Y’s FA.
• It did not update Mr Y’s care and support plans as regularly as it should have done and was sorry if there were errors in these documents.
• It accepted the service they had received was not in line with its expected standards and had reduced the outstanding invoice by half (so by about £2500)
37. Mrs X asked the Council to review its complaint response. The Council provided a further letter at the end of November 2024. It said adults were not allowed to use their DP to pay for their lunches when out with a Personal Assistant. This was council policy.

Findings

Failure to monitor Mr Y’s direct payment account annually, contributing to or causing a debt of £5000

38. The Council was at fault. Guidance required it to monitor Mr Y’s DP at least each year. Had it done so, it is likely non-payment of the charge would have been identified in 2020. This caused Mrs X avoidable distress (shock) when she received a large invoice for several years of unpaid charges. The Council has already accepted it was at fault and apologised in the complaint response as well as reducing the bill by 50%. This is an adequate remedy for the injustice.
39. The lack of DP monitoring also meant Mrs X continued to spend the DP on items that were not required to meet Mr Y’s care and support needs. There is no suggestion that Mrs X was doing anything amiss and the Council said in its complaint response that there had been no wrongdoing, instead, Mr X’s previous care and support plan was poorly drafted in relation to food and drink costs. To recognise this, the Council did not reclaim any of the food and drink costs. This was in my view an appropriate and fair response.

Failure to apply disability related expenditure (DRE) and housing costs in the financial assessment from 2019

40. There is no fault in the decision not to include mortgage costs as an allowance in Mr Y’s FA. There is no evidence Mr Y was liable for any housing costs when he lived at home.
41. I am satisfied the Council considered the matter of DRE appropriately and in line with statutory guidance. It assessed Mr Y’s DRE in 2019 based on information Mrs X provided and wrote to her with the outcome. While Mrs X may disagree with the outcome, the LGSCO has no reason to question it.
42. The Council reminded Mrs X to provide any new information about changes to DRE each year when it reviewed Mr Y’s FA. There is no evidence she did. So the Council continued to apply the DRE from 2019 to each subsequent year’s assessment until it received a claim for additional items. This is in line with paragraphs 39 and 41 of Annex C to Care and Support Statutory Guidance and there is no fault. The Council was entitled to decline to backdate additional DRE because it had informed Mrs Y to advise the finance team about change in circumstances.

Failure to provide carer’s support/respite care

43. Mrs X asked for respite care in February 2024. There is no evidence the Council considered her request (which it would usually do by offering and completing a carer’s assessment) which was fault. However, the case notes indicate the social worker offered a carer’s assessment twice in August and Mrs X said this was not needed. So there is no injustice in the Council’s earlier failure to consider her request.

Failure to produce care and support plans which reflected changing needs

44. The Council should have carried out yearly reviews of Mr Y’s care and support plan as a minimum. The failure to do so was not in line with Care and Support Statutory Guidance and was fault. It caused uncertainty about whether Mr Y’s needs were accurately described and how to meet them. I cannot say on a balance of probability that the failure to review caused any loss of services. The Council has apologised and reduced an outstanding invoice to reflect its service was not in line with expected standards and this is a satisfactory remedy.

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Decision

45. I find fault causing injustice which the Council has already remedied during its complaint procedure.

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Investigator's decision on behalf of the Ombudsman