The Ombudsman's final decision:
Summary: There is fault by the Council in this complaint. It failed to ensure the direct payment process was properly explained to Mrs Y, failed to monitor the direct payment account, and failed to address correspondence about the account to Mrs Y.
- Mrs Y complains about the Council’s financial assessment of her son, Mr X.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I have:
- considered the complaint and discussed it with Mrs Y;
- considered the correspondence between the Council and Mrs Y. including the Council’s response to the complaint;
- made enquiries of the Council and considered the responses;
- considered relevant legislation;
- offered Mrs Y and the Council an opportunity to comment on a draft of this document, and considered the comments made.
What I found
- Councils have a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the council will provide a support plan which outlines what services are required to meet the needs and a personal budget which calculates the costs of those services
- Once a council has decided on a person’s eligible needs, a council can either provide or commission the services for the person, or if they prefer, the council can give them a cash payment (a direct payment) so they can organise their own care.
- The Care and Support (Direct Payments) Regulations 2014 stipulates that councils must review new direct payments within the first six months, and thereafter every 12 months. This is to ensure that public money is used appropriately and effectively.
- Councils can ask for repayment of the money if it has not been used to provide a service to which it relates.
- Councils can discontinue direct payments if the person has not complied with the conditions of the payment. If a council withdraws payments, it will need to arrange the services instead.
- Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14)
- If a council decides to charge, it must assess a person’s finances to decide what contribution he or she should make to the cost of their care. It must give a written record of this assessment to the person. This should explain how the assessment has been carried out, what the charge will be, and how often it will be made.
- The Care and Support Statutory Guidance (the Guidance) provides detailed guidance for councils on how to conduct the financial assessment. The assessment should take into account a person’s capital (e.g. savings, property) and income.
- Mr X has autism, language difficulties and past mental health issues. His only income comes from state benefits.
- Mr X has eligible care needs and received a direct payment from the Council to purchase support services. The Council says the direct payment was set up by a Community Psychiatric Nurse (CPN), under a previous working arrangement.
- Due to his communication difficulties, all communication relating to Mr X’s support and finances are managed by his mother, Mrs Y. The Council has been aware of this since 2016. Mrs Y says this was confirmed again in October 2018. The Council referred to Mrs Y as Mr X’s “the service user’s financial representative”. All correspondence about Mr X is directed to Mrs Y directly.
- The Council confirms “its records show that [Mrs Y] was listed as an appointee for [Mr X] in October 2018…”
- Mrs Y says she is responsible for ensuring Mr X’s contributions towards his care were paid.
- The support Mr X receives is intended to promote his daily living skills and independence with shopping and management of bills. The level of support varies every week, so money can accrue in the direct payment account. From October 2018 he received a four weekly direct payment of £240.
- Mrs Y says the Council paid £3430.69 into the direct payment account prior to a financial aassessment in October 2018. She says the Council did not inform her the money had been deposited, she only became aware when she later received a demand for payment of backdated contributions. Mrs Y then asked for copies of the account information.
- The Council completed a financial assessment of Mr X in October 2018. It concluded his client contribution to be £59.93 per week. It wrote to Mrs Y on 23 October 2018 informing him of the outcome. Mrs Y says she was unsure what if any contribution was due because his support varied, and the letter was unclear. Mrs Y said she expected to receive a bill for any contribution due.
- The last direct payment Mr X received from the Council was on 9 October 2018. This was to cover his support costs until 15 October 2018. At that point there was already more than £3000 in the account. Mrs Y says this money was to pay for support costs prior to the financial assessment.
- Mrs Y says it was nine months after the financial assessment before Mr X received an invoice from the Council.
- The Council acknowledges the delay in issuing a bill, “The delay in issuing the bill was because the issue was picked up as part of our standard monitoring and audits for unpaid Client Contribution. It is not standard practice to issue invoices outside of this process”.
- As part of this investigation the Council provided me with an Excel spread sheet detailing the direct payments made to Mr X. This shows the direct payment of £240 ceased from August 2018 and the Council only paid in only 24p. The Council says this was because Mr X’s client contribution was £59.93 per week, which left a payment of 24p due to Mr X.
- In June 2019, the Council wrote to directly to Mr X to say he had accrued a debt of £2354.51 for backdated client contribution, and this was as result of a financial assessment completed in October 2018. Mrs Y disputes the debt. She says Mr X only received four hours support a week at £14.10 an hour, and the actual cost was £1588, not £2354.51. The letter said if the debt was not settled the Council may take legal action. Mrs Y says the Council should have written directly to her and the letter caused Mr X distress.
- Mrs Y says the Council has not explained the direct payment process properly, and she lacks a proper understanding. It is clear from discussing the matter with her that she does lack understanding. Mrs Y was under the impression Mr X only paid a contribution for the support used, not the whole direct payment paid. Mrs Y says the Council’s monitering of the direct payments has been poor.
- Mrs Y sent numerous emails to the Council seeking clarification of the direct payments and the calculation of the client contribution. In December 2019 she spoke to and exchanged emails with senior officers in the Council’s financial assessments team. She says an officer said she would seek clarification and get back to her. Mrs Y did not hear back from the officer.
- On 19 February 2020 the Council again wrote directly to Mr X to inform him he had previously been able to hold a balance of eight weeks direct payment monies in the account, but as from February 2020 this would reduce to six weeks, and the Council would reclaim anything above this amount.
- Mrs Y says the Council informed her on 5 March 2020 it had changed Mr X’s direct payment account to a deposit only account. As a result of the change she is now unable to access to the account and settle any outstanding bills.
- On 7 July 2019, the Council paid £2160 into Mr X’s direct payment account. Mrs Y did not receive a breakdown explaining the funds. She sent an email to the Council on 13 July 2019 asking for an explanation. She did not receive a response. The Council removed the funds from the account without warning or explanation.
- Mrs Y submitted a formal complaint to the Council on 31 July 2019. She did not receive a response, so she sent a further email in August 2019 asking for a copy of the Council’s complaints policy. The Council responded and provided a link to its complaints policy. Mrs Y heard nothing more, so she sent another email in November 2019. Mrs Y received an email from the Council on 27 November 2019 responding to her query about Mr X’s client contribution. She was dissatisfied with the response because it did not adequately explain the issue or respond to all the points she raised.
- The Council says it is not standard practice to issue invoices, it did so on this occasion because Mr X’s unpaid client contribution was discovered during its standard monitoring and audit of client contributions. It is not standard practice to issue invoices outside of this process.
- The Council says that Mr X’s client contribution increased from 30 May 2020 to £63.59 per week, and this exceeded the sum of the direct payment. As a result, the direct payment is zero and has now ended.
- Mrs Y says she and her husband have, and will continue to pay for all the support Mr X requires
- Councils have a key role in ensuring that 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
- In this case, the direct payment process was not sufficiently explained. The Council says the direct payment arrangement was set up by a CPN, under a previous working arrangement, and this arrangement no longer exists. Although the Council can contract out services, it remains responsible and accountable irrespective of whether the provider is a private company, a third sector organisation or another publicly funded body. The fault lies with the Council.
- The Council failed to check the direct payments were being properly managed. There is evidence of confusion throughout. The information the Council gave was lacking and unclear. Mrs Y’s confusion is understandable.
- The Council paid money into Mr X’s direct payment account without informing Mrs Y and because of this the payments were unspent, consequently, a significant sum accrued in the account. This is the fault of the Council, not Mrs Y.
- Later the Council paid a further unexplained lump sum into account. When Mrs Y queried the payment, the Council failed to respond and removed the money. This added to Mrs Y’s confusion and mistrust.
- The Council wrote directly to Mr X about the unpaid client contributions. The letter referred to legal action if the debt remained unpaid. The Council was aware Mrs Y was Mr X’s financial representative, and that all correspondence should be sent to her. This is fault by the Council. It is fortunate that Mrs Y was able to intervene and prevent any significant distress to Mr X.
- Mrs Y refutes the amount of backdated client contributions and contacted the Council to address this. I have seen no evidence the Council responded with a clear explanation.
- Mrs Y has been put to significant time and trouble pursuing the Council in an attempt to understand and resolve the issues highlighted above.
- The Council will within four weeks of the final decision:
- provide Mrs Y with a written apology for the failures highlighted above
- undertake a review of Mr X’s support needs and develop a support plan
- in carrying out a review of Mr X’s support needs establish if Mr X has missed out on eligible support, if he has, offer additional support/appropriate activities
- discuss the option of future direct payments or commissioned services with Mrs Y
- pay Mrs Y £250 for her time and trouble pursuing the complaint with the Council and the Ombudsman.
- Within three months:
- ensure direct payment recipients are provided with an adequate explanation of the process and ensure there is suitable arrangements in place to monitor.
- There is fault by the Council in this complaint. It failed to ensure the direct payment process was properly explained to Mrs Y, failed to monitor the direct payment account, and failed to address correspondence about the account to Mrs Y.
The remedy above is a satisfactory remedy for the injustice caused. It is on this basis; the complaint will be closed.
Investigator's decision on behalf of the Ombudsman