Summary: Ms C complains the Council is wrongly recovering an over payment. The Council is at fault for failing to give advance notice about a termination of a direct payment, and properly considering whether there are any arrears due. This has caused uncertainty and distress about the validity of a debt. To remedy the complaint the Council has agreed to review the alleged arrears, its contracts, and the steps it needs to take before ending a direct payment.

The complaint

1. The complainant who I refer to as Ms C, complains in her own right and on behalf of her son, who I refer to as Mr D.
2. Ms C complains the Council is pursuing her for money she does not owe. Ms C says the Council’s pursuit of this debt, even after she made a formal complaint, has caused her stress and anxiety.
3. Ms C also complains that the Council wrongly reduced Mr D’s care package in December 2016. This has resulted in her having to take on most of the caring responsibilities.

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What I have investigated

4. I have not investigated the Council’s decision to reduce services in 2016 for the reasons set out below.

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The Ombudsman’s role and powers

5. 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)
6. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
8. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable. (Local Government Act 1974, section 26A(2), as amended)

9. 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)
10. 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

11. I spoke with Ms C and considered information she provided. Based on this information I made enquiries of the Council. This included asking for documentary information and answers to questions. I also considered the following information:-
• Care Act 2014 and the associated guidance, Care and Support Statutory Guidance 2014 (CSSG);
• signed Terms and Conditions for Mr D’s direct payments;
• case notes;
• invoices for the arrears the Council says Ms C owes;
• Ms C’s direct payment bank statements.
12. Ms C and the Council 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

Background information

13. Ms C is the mother and main carer for her son, Mr D. Mr D needs twenty four hour support. Ms C approached the Council to ask for help to support Mr D.

What should have happened

14. Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs. The local authority has 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.
15. Paragraph 12.24 Care and Support Statutory Guidance says,
16. “The local authority must be satisfied that 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 set out that the local authority must review the making of direct payments initially within 6 months, and thereafter every 12 months, and must not require information to be provided more often and in more detail than is reasonably required for the purpose of enabling the authority to know that making direct payment is still an appropriate way of meeting the needs, and that conditions upon which it is made are met.”

What happened

17. In 2015 the Council assessed Mr D as having eligible needs. It agreed a direct payment of £495.73 a week.
18. Ms C did not initially use the direct payment as she says the Council told her it could not be used to pay a family member. A family member, who I refer to X, lived separately and during this period helped support Ms C in her caring role.
19. The Council was concerned that Ms C was not using the direct payment and in conversation learnt that X was providing support. The Council told Ms C she could use the direct payment money to pay X to provide support. Ms C says she discussed this further with the financial monitoring department of the Council.
20. In July 2016, the Council requested financial monitoring information from Ms C. The Council advised that if it did not receive information by August the direct payment would stop. The Council contacted Ms C again in September asking for financial information.
21. Ms C says during this period her physical health had seriously deteriorated and she was also coping with mental health difficulties. She says she tried to provide the Council with information, but because of her health problems and her family situation at the time, she was finding it difficult.
22. Following a review on 5 December the Council reduced Mr D’s direct payment. On 18 January 2017 the Council told Ms C, effective from 5 December 2016, it would make no further payments until she employed personal assistants.
23. Ms C was unwilling to have personal assistants until she had completed building work which she says would allow both her and the personal assistants to safely provide care to Mr D. She told the Council she would employ personal assistants when the building work was completed. Ms C says she has had difficulties finding appropriate builders and the building work remains incomplete.
24. The Council accepted that Ms C paid X for care. However it invoiced Ms C for £4390.75. This was for payments after 6 December 2016. Ms C says the Council did not tell her about suspension of payments until 18 January 2017, and used the money in good faith for care. The Council responded to Ms C’s query about an end date saying,
25. “The new budget start date begins at the point of panel authorising the package. This was on 05/12/2016. Mr D’s previous budget continues until this date, so it extended for 8”.
26. Ms C also says that an officer told her that as the Council had made an error it would not recover the overpayment.
27. In February 2018, the Council asked Ms C for financial information. It said that it had not received any financial monitoring information for the direct payment. By May the Council received a couple of bank statements which showed large cash withdrawals from the direct payment account.

28. Ms C has provided bank statements which show payments to X. A balance sheet for 30 November 2017 shows a balance brought forward of £11,134.99. This reduces to £5422.99 by 28 February 2018 with Ms C paying X.
29. The Council says the last known balance on the account on 4 January 2019 was £4.99 with payments made to X. The Council says there was enough money in the account to pay the arrears. It says Ms C has failed to provide evidence in the form of care invoices/time sheets or information from HMRC that X was providing care.
30. During the period of the complaint the Council has sought financial information several times. Ms C has had periods of ill health which she says has prevented her from sending information as quickly as she would have liked. The Council has taken no enforcement action against the debt but has sent requests for information and invoices.

Is there fault causing injustice?

31. The Council was at fault for telling Ms C about its decision to end the direct payment over a month after the decision and for the lack of clarity in its communication about the end date. This caused Ms C to believe that she had funds available to spend on care for that period.
32. The Council considers the whole amount of “overpayment” are arrears. It did not however at the time consider whether Ms C had any obligation to pay X for unpaid wages, a notice period or any other financial obligations arising such as notice periods for any other carers/services involved. I consider the failure to give notice at the time of the termination of the direct payment is fault.
33. The Council has a duty to protect the public purse and has not acted unreasonably in asking Ms C for information to verify the overpayment was used to pay for care. This is supported by paragraph 12.24 CSSG detailed above.
34. However the Council appears to have accepted payments to X for over two years without evidence of HMRC/national insurance payments or time sheets. It therefore appears to be asking Ms C for information it knows she does not have.
35. The lack of proper consideration of the arrears has resulted in uncertainty for Ms C about whether any money is owed.
36. Ms C complains the Council continued to pursue arrears after she made a complaint. It is usual for councils to put accounts on hold and suspend enforcement action until a complaint is considered. In this complaint the Council has taken no enforcement action, and although the Council has sent invoices these have not been excessive. I therefore find no fault with the Council on this part of the complaint.

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Agreed action

37. I consider there was fault by the Council which caused Ms C injustice. To remedy the complaint I consider the Council should take the following action:-
1. apologise to Ms C for the failure to tell her, in advance, of the date the direct payment would end;
2. reconsider whether the debt is owed taking into account:

• whether Ms C legitimately paid X for care or any other contractual obligations;
• whether X was owed any money for care completed;
3. remind staff about the importance of forewarning people about changes to their direct payments in good time before the change occurs to give them an opportunity to meet any obligations they may have;
4. in light of the comments made in this statement review the direct payment contract and any clauses associated with notice for ending a direct payment.

38. The Council should complete (a) – (b) within one month of the final decision and (c) –(d) within three months of the final decision.

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Final decision

39. I have found fault casing injustice. I consider the agreed actions are suitable to remedy the complaint. I have now completed my investigation and closed the complaint.

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Parts of the complaint that I did not investigate

40. I have not considered the Council’s decision to reduce Mr D’s direct payment in 2016. This is because we do not usually consider complaints when the decision made is more than 12 months ago. This is because with the passage of time it is difficult to get the information needed to properly decide a complaint.
41. In this complaint it is also difficult to say any potential fault has caused Mr D injustice. This is because since 2017 he has not had any services from the Council due to the need for building work. Mr D can ask the Council for a reassessment when the building work is completed. If he is unhappy with the outcome he can complain at that time.

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Investigator's decision on behalf of the Ombudsman