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Essex County Council (17 011 352)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 22 Mar 2018

The Ombudsman's final decision:

Summary: The Council delayed cancelling direct payments for Mrs T’s care leading an overpayment. The Ombudsman considers the Council has offered a suitable remedy.

The complaint

  1. The complainant whom I shall refer to as Miss T, complains the Council failed to suspend direct payments for care provision to her mother Mrs T, when it was clear that was not entitled. She says the Council should not have continued payments as she had capital from the sale of her home. She complains there was delay in seeking recovery of the overpayment. She also complains the Council failed to assist her is arranging care for her mother.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. He must also consider whether any fault has had an adverse impact on the person making the complaint. (Local Government Act 1974, sections 26(1) and 26A(1))
  2. 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

  1. I have
    • Discussed the complaint with the complainant
    • considered the complaint and the copy correspondence provided by the complainant;
    • made enquiries of the Council and considered the comments and documents the Council provided; and
    • considered the complainant’s comments on my draft decision.

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What I found

  1. Mrs T needed care at home due to her age and health conditions. She was receiving direct payments from the Council for her care. Miss T helped her mother to arrange the care provision. The direct payments were assessed based on Mrs T’s income and capital.
  2. In late 2015 Mrs T moved into Miss T’s home and put her own home up for sale. Mrs T would not be eligible for direct payments when she sold her home as she would have capital over the threshold of £23,250. She would then become self funding.
  3. In March 2016 Mrs T sold her home. The Council says the company providing care to Mrs T told it in early April that Mrs T would be self funding. The Council noted on its records that Mrs T was “over the [capital] threshold” and also stated the social worker would review payments.
  4. Miss T says she called the Council soon after the flat was sold and asked it to stop the direct payments. She says the social worker told her that she would keep the payments in place until she carried out a review of Mrs T’s personal budget. The Council says it does not have a record of this call in April . However, the Council’s records show Miss T called the Council on 25 May to discuss Mrs T ‘s care and that she confirmed Mrs T had sold her home.
  5. The Council says Mrs T’s social worker attempted to meet with Miss T between April and June 2016 in order to review Mrs T’s personal budget for the direct payments. However, she was unable to do so for various reasons including
    • Her own leave arrangements
    • Mrs T’s admission to hospital
    • Miss T cancelling some appointments
  6. On 14 June 2016 the Council noted Miss T cancelled arrangements for a meeting. The social worker also noted that she reminded Miss T to “send back any payments received from the Council”.
  7. On 11 July 2016 the Council met with Mrs T and carried out a review of her personal budget. The Council noted the case should be closed because Mrs T had sold her house. She was now above the capital threshold and was self funding.
  8. On 25 August 2016 the Council called Miss T and she stated that the Council was still paying direct payments.
  9. The next day the social worker called the direct payments team about cancelling the payments. It advised it had a backlog and that cancelling payments was not a priority. It said it would be writing to Mrs T to ask for bank statements for the direct payment account in order to finalise the account. The social worker called Miss T and asked her to send 3 months bank statements. Miss T said she was going away but would send these on her return.
  10. The Council did not receive the statements that it had requested from Miss T. However, the direct payments were cancelled. The Council paid the last payment on 22 July 2016 for the month of August.
  11. Sadly, in early 2017, Mrs T passed away.
  12. In May 2017 the Council wrote to Miss T. It apologised for the delay and asked for bank statements in order to finalise the direct payment account.
  13. In August 2017 Miss T sent a letter from her mother’s bank showing the final balance. The Council then sent Miss T an invoice for £4550 which was for direct payments between April and August 2016. The Council’s covering letter said that the overpayment was no one’s fault. But it said that the Council was entitled to reclaim the money.
  14. Miss T complained to the Council in September. She said it was the Council’s fault that Mrs T had been overpaid. The social worker had allowed the direct payments to continue until she carried out a review. But the social worker did not visit her or tell her that there may be an overpayment. She said she had called the Council to ask it to stop payments three times. She requested that the Council recover only the overpayment from June when she believed the Council carried out the review. Miss T asked why the Council did not reclaim the overpayment until after her mother had died. She said she had found this very distressing, particularly at a time when she and her family were coping with her mother’s death.
  15. The Council replied accepting that it had not been as responsive as it could have been about cancelling the direct payment. However, it said that the social worker had tried to make an appointment to carry out a review. It said that Miss T had not been able to attend any of the appointments over a 7 month period. The Council said the social worker had asked for bank statements in August 2016, and had contacted her in May 2017 and August 2017. The Council maintained that the overpayment was repayable and that Miss T had not been disadvantaged due to not returning the overpayment.
  16. Miss T complained further that she had told the Council in April 2016 about the sale of her mother’s home. She said the social worker had been unable to make an appointment in April and because Mrs T was in hospital. Miss T said the Council was wrong to say she did not attend appointments over a seven-month period. She asked why the Council continued to pay direct payments when it knew Mrs T was not eligible. Miss T said that the social worker told her in June she had submitted paperwork to stop the payment. Therefore, Miss T was willing to pay the overpayment from June. But Miss T said she had to call a further three times before payments stopped. Miss T said the social worker could not have spoken to her on 26 August as she was away at that time. Miss T also complained that the social worker failed to help her arrange care for her mother when she knew that she was self funding.
  17. The Council replied it was clear it could have stopped payments earlier. This would have minimised the overpayment. The Council apologised for this. However, it still considered it should recover the full overpayment. The Council noted Miss T disputed the social worker called her on 26 August 2016. But it said its records showed the call took place.

Analysis

  1. The Council accepts that it should have cancelled or suspended direct payments due to Mrs T as soon as it was aware she had capital over the threshold. This was in early April 2016. It explains its standard practice is to stop direct payments when the service user requests this or when the service user advises they are now self funding. I consider this is fault. However, aside from the frustration caused by the ongoing payments and some time and trouble for Miss T, I do not consider this caused significant injustice. It appears Miss T was aware that the direct payments should stop as Mrs T was not eligible and that the Council would ask her to repay the overpayment.
  2. The Council also accepts that the social worker did not need to carry out a review of the personal budget once it was confirmed Mrs T was self funding. This was fault. I consider this caused some injustice to Miss T because she was put to time and trouble by the social worker contacting her to arrange appointments.
  3. The Council referred to a seven month period during which the social worker sought to make an appointment with Miss T. I can see that the Council did make several attempts and that Miss T had genuine reasons why she could not attend some appointments. I do not consider there is fault in the Council’s description of the social worker’s actions. However, as the appointments were for a review which was not necessary, there is fault here as I explain in paragraph 23.
  4. The Council says it was not at fault in failing to pursue recovery of the overpayment. I consider the Council was at fault because aside from advising Miss T by phone to provide bank statements in August 2016, it did not write to Miss T until May 2017. In any case I have not seen evidence that the requested information was completely necessary. The Council has not fully explained why it needed the information, and eventually seemed to accept a letter confirming the balance rather than bank statements. While I consider this was fault, I do not consider the delay caused significant injustice to Miss T.
  5. Miss T has complained the Council did not assist her in arranging a care package for her mother. She said in her final complaint to the Council that she knew the Council would not assist in arranging a care package when she became self funding. But she said she found the manner in which the Council had treated her unacceptable. The Council confirms that when Mrs T became self funding the Council did not have a responsibility to arrange the care package. Based on the information I have seen the Council did provide advice when Miss T called it. I have not found fault here.

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Agreed action

  1. In its response to my enquiries the Council offered Miss T £200 as a gesture of goodwill in view of the faults it accepted. The Council also said a manager would raise the matter with the social worker in order to ensure she was aware of the Council’s practice when a service user started self funding.
  2. I consider that this action together with the apology the Council has already given to Miss T is a suitable remedy.

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Final decision

  1. I have completed my investigation on the basis that there was fault by the Council which it has remedied by apologising and paying £200 to Miss T. The Council should make the payment within 4 weeks of my decision.

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Investigator's decision on behalf of the Ombudsman

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