Summary: There is no fault in the Council’s decision to suspend Ms X’s direct payment or in how it handled a complaint. However, the Council failed to explain why it had not put the direct payment back into place, failed to offer Ms X an assessment later in 2023 and failed to include her advocate in correspondence. That caused Ms X distress and left her with some uncertainty. An apology, a financial award to be deducted from Ms X’s arrears and guidance for officers is satisfactory remedy.

The complaint

1. The complainant, Ms X, complained the Council:
• suspended and then cancelled her direct payments without notice;
• failed to provide her with detailed information about why it had ended her direct payments until it responded to her complaint which meant she could not address the allegations;
• wrongly refused to reinstate her direct payments when she provided evidence for her financial assessment;
• failed to put in place interim care as it agreed to do;
• wrongly refused to pay an invoice for care delivered before she knew the Council had cancelled her direct payment;
• failed to address the concerns she raised in her complaint;
• failed to put in place reasonable adjustments; and
• subjected her to unreasonable and threatening behaviour.
2. Ms X says the Council’s actions had a significant impact on her well-being and left her struggling to manage basic tasks.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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(i), as amended)

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What I have and have not investigated

8. I have exercised the Ombudsman’s discretion to investigate what has happened since the end of 2022. That is because I am satisfied Ms X has several health conditions which made it difficult for her to raise the complaint with the Ombudsman within 12 months.

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How I considered this complaint

9. As part of the investigation, I have:
• considered the complaint and Ms X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
10. Ms X and the organisation 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

The Care Act 2014 and the Care and Support Statutory Guidance

11. Sections 9 and 10 of the Care Act 2014 (the Act) require councils to carry out an assessment for any adult with an appearance of need for care and support.
12. The Act gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area.
13. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The Council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning. It should confirm the final amount of the personal budget through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person's care and support needs.
14. There are three main ways a personal budget can be administered:
• as a managed account held by the council with support provided in line with the person's wishes;
• as a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person's wishes; or
• as a direct payment.
15. Direct payments are payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.
16. The local authority must be satisfied the direct payment is being used to meet the care and support needs set out in the plan, and should therefore have systems in place to proportionally monitor direct payment usage to ensure effective use of public money. The Care and Support (Direct Payments Regulations 2014 (the regulations) set out that the local authority must review the making of direct payments initially within 6 months, and thereafter every 12 months.
17. Direct payments should only be terminated as a last resort, or where there is clear and serious contradiction of the regulations or where the conditions in sections 31 or 32 of the Care Act 2014 are no longer met. Local authorities should take all reasonable steps to address any situations without the termination of the payment. Effective, but proportionate monitoring processes will help local authorities to spot any potential issues before a termination is necessary.
18. If terminating a direct payment, the local authority must ensure there is no gap in the provision of care support. Where a decision has been made to terminate a direct payment, the local authority should conduct a revision of the care and support plan, or support plan, to ensure that the plan is appropriate to meet the needs in question.
19. The local authority might also discontinue payments if the person fails to comply with a condition imposed under regulations to which the direct payments are subject or if for some reason the local authority no longer believes it is appropriate to make the direct payments. For example, the local authority might discontinue the direct payment if it is apparent that they have not been used to achieve the outcomes of the care plan.
20. In all cases, as soon as possible the local authority should discuss with individuals, their carers and any person managing the direct payments if it is considering discontinuing direct payments to them, in order to explore all available options before making the final decision to terminate the direct payments.
21. If the local authority does decide to withdraw direct payments, it will need to conduct a review of the plan and agree alternative care and support provision with the person, their carer and independent advocate if they have one, unless the withdrawal was following a review after which the local authority concluded that the services were no longer needed. A minimum period of notice should be established that will normally be given before direct payments are discontinued.
22. It will be extremely unlikely that a local authority will discontinue direct payments without giving notice, although in serious cases this may be warranted (for example, the authorised person is not acting in the best interests of the person). Local authorities should explain to people, before they begin to receive direct payments, the exceptional circumstances in which this might occur and discuss with them the implications this has for the arrangements that individuals might make.

The terms and conditions of the direct payment agreement Ms X signed

23. Ms X’s direct payments agreement sets out the terms and conditions, which includes:
• if the person receiving direct payments pays a weekly contribution towards care services they must pay this money onto the prepaid card or into their direct payments bank account;
• if they do not pay the assessed contribution the Council may bring the agreement to an end;
• the person needs to keep records of all spending made with the direct payments;
• if the person does not give the Council the information it asks for it may have to suspend or end the agreement and the direct payments;
• if this happens the Council will organise other support based on the person’s needs;
• this support will be in place before this agreement is ended;
• either the Council or the person can end the agreement and the direct payments and the notice must be in writing. The Council will talk to the person receiving the direct payment before it ends the agreement.
24. It lists the reasons why the Council may suspend or end the agreement, which includes:
• the Council did not receive the financial monitoring records within the requested timeframe;
• the person is no longer eligible for services;
• the Council believes the person is not using the direct payment to achieve the outcomes it agreed;
• the person is using the money illegally;
• the person does not do what they have agreed to do in the agreement.
25. It goes on to say the Council may end the agreement and the direct payment if the person has not paid the assessed contribution for 8 weeks.

What happened

26. Ms X has care needs and began receiving a direct payment care package from the Council in 2009. The direct payments package includes a payment for a PA for 19 hours per week.
27. The Council asked Ms X to provide information to allow it to complete its financial monitoring of the direct payments account in October 2021. Ms X and her representative asked for more time to put together the information. That was because Ms X was unwell. The Council agreed to that.
28. The Council allocated the case to a social worker to complete a review in May 2022. That was because the Council had concerns about Ms X not paying her full client contribution which meant she had arrears of more than £25,000.
29. The Council chased Ms X for the outstanding financial monitoring information in June 2022. The Council also checked with the payroll company which told the Council Ms X did not have any employees on the payroll.
30. The Council chased Ms X for the outstanding documentation in July. Ms X asked for an extension, which the Council agreed to.
31. The Council chased Ms X again in August and September for the missing financial information. The Council also asked Ms X for a date for a social worker to visit to complete a review and discuss the direct payment arrears. The Council told Ms X delays in response could affect her direct payment.
32. Ms X’s representative contacted the Council at the end of September to explain why Ms X had not provided the financial information, referencing an unprovoked attack she had experienced and bereavements. The representative told the Council Ms X needed an advocate to take part in the assessment and she was currently looking for one. In response the Council asked for an urgent face-to-face meeting and reminded Ms X it had been asking for her documentation since December 2021.
33. An advocacy service contacted the Council at the beginning of October to explain Ms X needed an advocate to accompany her for an assessment. The advocacy service said it could not provide an advocate at that point.
34. After identifying an advocate the Council asked Ms X for dates for a joint visit. Ms X told the Council she wanted to see the advocate alone first. That advocacy visit took place on 11 November.
35. The Council contacted Ms X’s advocate on 17 November to explain although it could discuss Ms X’s arrears when her well-being improved it still needed to carry out a care assessment. The Council also reminded the advocate Ms X should continue to pay her assessed client contribution to prevent further arrears. The Council said it could send Ms X a financial assessment form to complete or an officer to help her complete it. The Council said that could affect her arrears and future contributions depending on her financial circumstances. The Council said it could set up a payment plan if she was struggling financially.
36. In January 2023 the Council sent a referral to its direct payments finance team as Ms X had not paid or provided her financial monitoring paperwork since December 2021. At that point Ms X had arrears of £25,377.81.
37. Ms X’s advocate contacted the Council in January 2023 to explain the difficulties Ms X was experiencing. The Council sent Ms X a financial monitoring letter on 25 January. In that letter the Council told Ms X if she had not provided the requested paperwork by 9 February it would suspend her direct payments from 27 February.
38. Ms X’s advocate contacted the Council to ask for the financial monitoring forms on 15 February and then asked for an extension of time to send the information back.
39. Ms X’s new advocate contacted the Council in March to explain they were still putting together the requested documentation. On 6 April the Council confirmed it had suspended Ms X’s direct payment because she had not provided the necessary paperwork or paid her assessed charge.
40. Ms X’s advocate contacted the Council on 12 April to ask it to lift the suspension while it put together the information the Council had asked for. The Council told Ms X’s advocate for it to lift the direct payment suspension Ms X needed to provide the necessary paperwork given the multiple attempts the Council had made to try to get the information.
41. In April the payroll provider told the Council Ms X had not had any employees on the payroll since August 2021.
42. Ms X’s advocate asked the Council to extend the deadline to provide the documentation to 31 May. The Council agreed. Ms X’s advocate later asked for a two-week extension as Ms X had been ill. The Council agreed to that.
43. Ms X’s advocate provided the Council with the documentation it had asked for on 26 June. The advocate also provided the Council with an invoice for care Ms X had received in March 2023 and asked it to pay.
44. After considering the paperwork Ms X provided the direct payments team noted:
• Ms X had £700 left in her direct payments account;
• Ms X had not provided any evidence of payments made to carers/cleaners;
• Ms X had not provided any payslips with national insurance or invoice numbers;
• Ms X had paid contributions at £39.24 per week but as of July 2015 her assessed charge increased to £77.71, to £131.45 in 2020 and £133.48 in 2021. That meant she had arrears of £24,593.01.
45. The Council wrote to Ms X to ask her to provide receipts and invoices for payments made to the care agency by 24 July. In response, Ms X’s advocate raised concerns about the Council not copying her into correspondence as Ms X had requested. The advocate explained Ms X needed more time to provide the missing documentation. The Council extended the deadline to 11 September.
46. The Council chased Ms X’s advocate for the missing information in September. The advocate explained the difficulties Ms X was experiencing and also raised concerns about the impact on Ms X of not having a care service and about the unpaid invoice. The Council told Ms X’s advocate the reason Ms X did not have enough funds in her direct payments account to pay the invoice was because she had not been paying her assessed contribution.
47. Ms X’s advocate provided the outstanding information to the Council before the end of September. The Council asked for further bank statements which Ms X’s advocate provided in December.
48. Ms X put in a pre-action protocol letter in December 2023. The Council offered Ms X interim support while it carried out a further assessment. Ms X’s advocate told the Council Ms X would only accept that if it was provided by the care agency she had previously used. Ms X’s advocate told the Council Ms X needed a new social worker and wanted her advocate involved in assessments as a reasonable adjustment.
49. The Council explained for it to consider the care agency Ms X previously used she would need to provide details of the agency. The Council said it would arrange an assessment with a social worker and an officer from the reablement team. The Council agreed to include Ms X’s advocate in the assessment.
50. After liaising with Ms X to identify a suitable date the Council arranged a care assessment for 18 March. That was moved because Ms X was not available. The assessment took place on 24 April. A physiotherapist attended that assessment and concluded Ms X demonstrated independence in indoor and outdoor mobility, her functional balance was stronger and she could perform tasks such as putting on and removing shoes and reaching behind her without instability or fall risk. Although Ms X could not complete some isolated musculoskeletal or neurological test due to pain performance during functional tasks showed a range of motion, adequate strength and good upper limb coordination, including fine motor skills needed for daily activities. A joint assessment by an occupational therapist and reablement physiotherapist was recommended to explore Ms X’s fluctuating functional capacity further and to consider equipment that may enhance independence. Overall the physiotherapist felt Ms X had significant potential for full independence in her functional and care needs.
51. Ms X put in a complaint on 22 May about the Council failing to put in place interim care as she said it had agreed to do in January. Ms X also raised concerns about the Council’s decision to stop her direct payments.
52. A joint occupational therapy and physiotherapy functional assessment took place on 29 May. The outcome of that was for Ms X to trial adapted kitchen equipment and further hand therapy. The assessment also recommended rehabilitation input to support long-term functional improvement and independence. The assessment noted if Ms X did not agree to that a period of reablement should be used to build Ms X’s confidence and independence.
53. The Council responded to Ms X’s complaint on 9 July. The Council did not uphold the complaint and said it was satisfied the delays in the assessment were due to Ms X not being available. The Council explained the plan was for the occupational therapist to work with Ms X to optimise her safety and functional performance so she could become more independent, alongside a referral to a rehabilitation programme. The Council said it intended to reassess Ms X's eligibility for care and support after that. The Council said in terms of stopping the direct payment it had tried to engage with Ms X well before April 2023 about the concerns it had about her management of the direct payment and the outstanding arrears. The Council said it stopped the direct payment because Ms X had not paid her contributions or provided invoices.
54. Ms X refused a service from the reablement team. The Council asked Ms X’s advocate to encourage her to reconsider.
55. Ms X’s advocate asked the Council to take the complaint to stage two as Ms X was not satisfied with the response. The Council responded on 16 August. The Council noted it had offered Ms X a traditional care package and needs assessment but she had only accepted if the Council used the care agency she had previously used. The Council told Ms X’s advocate it could not do that because the provider was not registered on the Council’s framework. The Council said because there had been a gap in care it needed to complete an assessment of needs to put a care package in place.
56. The Council finalised the care assessment in November 2024 and found Ms X ineligible for services as it was satisfied she was independent in her activities of daily living.
57. Ms X accepted reablement and that took place between 13 December and 22 January 2025. Following that the Council wrote to Ms X’s advocate to explain the reablement team had not recommended a care package because Ms X could manage her tasks independently. The Council suggested Ms X engage with an occupational therapy assessment for the kitchen and bathroom to identify any other need for support.
58. Ms X’s advocate again raised concerns about the Council not paying an invoice for care Ms X received in March 2023. The Council explained it had suspended Ms X’s direct payments in February 2023 and therefore could not pay an invoice for care received in March 2023.

Analysis

59. Ms X says the Council suspended and then cancelled her direct payment without notice. I am satisfied the Council wrote to Ms X on 25 January 2023. In that letter the Council told Ms X if she did not provide the financial monitoring information by 9 February it would suspend her direct payment from 27 February. I am therefore satisfied the Council gave Ms X more than a month’s notice.
60. I appreciate Ms X’s representative contacted the Council to ask for more time to provide the evidence. However, Ms X’s representative did not contact the Council until after the deadline had expired. In those circumstances and as I am satisfied the Council had been waiting for the requested information since 2021 I have no grounds to criticise it for suspending Ms X’s direct payment.
61. The care and support statutory guidance is clear if a council intends to end the direct payment it should ensure alternative care support is arranged so there is no gap. I also recognise Ms X did not have care provision in place when the direct payment ended. However, I am satisfied the Council had tried to arrange a review with Ms X since 2022. I am satisfied the only reason that review did not go ahead before the Council suspended the direct payment is because Ms X failed to engage. I therefore have no grounds to criticise the Council.
62. Ms X says the Council failed to provide her with information about why it had suspended and terminated her direct payments. Ms X says because the Council did not give her that information until it responded to her complaint she did not have an opportunity to address the concerns.
63. The evidence I have seen satisfies me there were lots of communications between Ms X and the Council between October 2021 and when the Council suspended the direct payment in February 2023. I am satisfied in those communications the Council made clear it needed the financial monitoring information from Ms X. I am also satisfied the Council repeatedly raised concerns with Ms X about her not paying her assessed contribution.
64. I appreciate Ms X disputes the amount the Council assessed her as needing to pay. However, that falls outside the scope of my investigation. I am satisfied the Council told Ms X about its concerns about her not paying her assessed contribution and failing to provide the financial monitoring paperwork. I am also satisfied the Council told Ms X in January 2023 those matters would result in her direct payment being suspended. Following that the Council contacted Ms X on 6 April and reiterated those reasons again. I am therefore satisfied the Council had told Ms X the reasons for the suspension of her direct payments. So, I have no grounds to criticise it.
65. Ms X says the Council unreasonably refused to reinstate her direct payments when she provided evidence for her financial assessment. I am satisfied Ms X provided the Council with the information it asked for in June 2023. The evidence I have seen though satisfies me the Council had concerns about the information Ms X provided at that point. That concerned the lack of records showing Ms X had employed a PA and concerns about her not paying her assessed contribution.
66. In those circumstances I cannot criticise the Council for not putting the direct payment back into place. However, I would have expected the Council to write to Ms X to explain why it had not put the direct payments back into place. Failure to do that is fault. I would also have expected the Council to discuss the option of a further assessment. Failure to do that is also fault.
67. I am concerned the Council did not discuss the offer of an assessment with Ms X when her representative raised concerns about the impact on Ms X of not having a care package in September 2023. That is fault.
68. Ms X says the Council failed to put in place an interim care package pending an assessment as it agreed to do in January 2024. I have found no evidence the Council agreed to put an interim care package into place in January 2024. Instead, the documentary evidence shows Ms X’s representative told the Council Ms X would accept a care package but only from the previous care agency. I am satisfied the Council asked Ms X for more information about the care agency so it could consider that point. I have seen no evidence Ms X responded to that. However, there is also no evidence the Council raised that with Ms X again before it carried out the care assessment in April 2024. Nor is there any evidence the Council told Ms X about the reasons why it could not use her previous care agency until it responded to her complaint. That is fault.
69. I recognise there was a delay putting in place the reablement recommended following the care assessment as that did not begin until December 2024. However, the evidence I have seen satisfies me that is because Ms X initially refused the service. I therefore have no grounds to criticise the Council for that delay.
70. Ms X says the Council unreasonably refused to pay an invoice for care she received in March 2023. Ms X says she incurred those costs because she did not know the Council had suspended her direct payment. As I said earlier, I am satisfied the Council told Ms X in January 2023 it would suspend the direct payment if it had not received her paperwork by 9 February 2023. I am therefore satisfied Ms X should have known her direct payment had been suspended at that point. In those circumstances I cannot criticise the Council for refusing to pay the invoice Ms X put in. Nor can I criticise the Council for telling Ms X she would need to pay the invoice herself as she had significant arrears for her client contribution.
71. Ms X says the Council failed to respond to the points she raised in her complaint. The evidence I have seen satisfies me the Council addressed the concerns Ms X raised. I therefore have no grounds to criticise it.
72. Ms X says the Council failed to make reasonable adjustments to reflect her needs. I am satisfied the Council responded to Ms X’s request for a reasonable adjustment as it agreed to extend deadlines, to allocate a new social worker and for Ms X’s advocate to be involved in the assessment. I therefore could not say the Council failed to make reasonable adjustments. There were occasions though when the Council failed to include Ms X’s advocate in correspondence, as it had agreed to do. That is fault.
73. I see no reason though why the Council would have needed to put support in place for Ms X to help her provide the documentary evidence the Council had asked for. That is because I am satisfied the Council knew Ms X had an advocate working with her to provide that information.
74. I have found no evidence to suggest the Council subjected Ms X to unreasonable and threatening behaviour. I appreciate receiving repeated communications about the client contribution arrears and the need to provide financial monitoring information could have caused Ms X to feel under pressure. However, I cannot criticise the Council for telling Ms X about those issues. I am also satisfied the Council allowed a lengthy period for Ms X to provide the requested information before it suspended her direct payments given it began asking for the information in October 2021. I therefore have no grounds to criticise it.
75. I now have to consider a suitable remedy to reflect the injustice Ms X experienced because of the fault identified in this statement. I appreciate Ms X has not had a care package since March 2023. However, the evidence I have seen satisfies me Ms X also failed to engage with the Council to enable it to carry out a care assessment until 2024. I also have to take into account the fact the Council decided, after carrying out a care assessment, Ms X was no longer eligible for a care package, other than the reablement service. The evidence also shows that reablement service was delayed because Ms X refused to accept it at first.
76. I consider it likely, on the balance of probability, if the Council had revisited the issue of an assessment with Ms X in 2023 as it should have done it is likely it would have reached the same conclusion, but earlier. However, that would only have been the case if Ms X had engaged and I cannot say she would have, given the difficulties obtaining Ms X’s engagement. I therefore cannot seek a remedy for missed care provision.
77. However, I consider Ms X is likely to have suffered distress and is left with some uncertainty. To recognise that I recommended the Council apologise to Ms X. I also recommended a financial remedy of £300 which the Council can deduct from Ms X’s arrears. The amount recommended reflects my view that it is possible Ms X would still not have engaged even if the Council had offered her an assessment in 2023.
78. I further recommended the Council provide guidance to officers dealing with direct payments covering the following issues:
• that when the Council suspends or cancels a direct payment it should offer the person a new assessment and ensure continuity of care;
• the actions needed when the Council decides it cannot put a direct payment back into place when a financial assessment has identified issues;
• the need to continue to encourage engagement with a new assessment where the person has failed to engage.
79. The Council has agreed to my recommendations.

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Action

80. Within one month of my decision the Council should:
• apologise to Ms X for the distress and uncertainty she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• deduct £300 from Ms X’s contribution arrears; and
• provide guidance to officers dealing with direct payments covering the following issues:
1. that when the Council suspends or cancels a direct payment it should offer the person a new assessment and ensure continuity of care;
2. the actions needed when the Council decides it cannot put a direct payment back into place when a financial assessment has identified issues;
3. the need to continue to encourage engagement with a new assessment where the person has failed to engage.
81. The Council should provide us with evidence it has complied with the above actions.

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Final decision

82. I find fault causing injustice. The Council will take action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman