Summary: Mrs X complains that the Council wrongly considers Mr Y’s direct payment account is in arrears. There is no evidence of fault in how the Council reached its decision that Mr Y has arrears on his direct payment account and owes £11069.63 to the Council.

The complaint

1. Mrs X complains that the Council wrongly considers her son has arrears on his direct payment account amounting to £11383.47 and is wrongly seeking recovery of this amount.

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What I have investigated

2. Mrs X considers there may have been errors in the Council’s financial assessments from 2008 onwards. I have investigated events from 2018 as I cannot reliably investigate earlier events due to the passage of time.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
4. 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

5. I have:

• Considered the complaint and the information provided by Mrs X;
• Discussed the issues with Mrs X
• Made enquiries of the Council and considered the information provided;
• Invited Mrs X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

6. 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)
7. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The Council can take a person’s capital and savings into account subject to certain conditions. If a person incurs expenses directly related to any disability he or she has, the Council should take that into account when assessing his or her finances. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)
8. The local authority must be satisfied the direct payment is being used to meet the care and support needs set out in the support plan and should therefore have systems in place to proportionally monitor direct payment usage to ensure effective use of public money. (Paragraph 12.24 of Care and Support Statutory Guidance)
9. The Council’s direct payment agreement which is signed by the client or the person managing the direct payment account sets out the terms for using direct payments. This includes that the direct payments should be used to meet needs and outcomes set out in the support plan. They cannot be used for personal and household expenses such as household maintenance and repairs.

What happened

Background

10. Mrs X’s son, Mr Y, received direct payments for a number of years to enable him to employ a personal assistant to provide his care. Mrs X managed Mr Y’s direct payment account. In 2007 the Council assessed Mr Y as needing to pay a contribution towards his care. Audits carried out between 2013 and 2016 showed Mr Y had not paid his contribution which should be paid into his direct payment account. Mrs X agreed to pay the arrears. I refer to these events by way of background as they do not form part of my investigation.

Financial assessment and audits of 2018

11. The Council caried out a financial assessment for Mr Y in spring 2018. The Council’s records show it rearranged the visit to Mr Y for the assessment several times to enable Mrs X to attend. The financial assessment showed Mr Y needed to pay a contribution of £49.77 per week. Mrs X and the assessing officer signed the financial assessment to confirm it was correct.
12. The Council also carried out an audit of Mr Y’s direct payment account from 2015 to February 2018. It found Mr Y needed to return £16343.45 to the Council in part because he had not paid his contribution. The audit also noted Mrs X had withdrawn funds from the direct payment account by mistake. The Council notified Mrs X of the outcome of the audit.
13. The Council’s records show Mrs X contacted the Council. The record notes Mrs X understood the outcome of the audit and what Mr Y needed to pay. The Council’s records note an officer reminded Mrs X that Mr Y needed to also pay his contribution from March 2018 onwards.
14. Mr Y was admitted to hospital in March 2019 and then moved into rehabilitation care. I understand the Council continued to make payments to Mr Y’s direct payment account until July 2019.
15. The Council carried out a final audit from 1 March 2018. The audit concluded Mr Y owed £26,889.33 to the Council which had partly arisen as the Council continued to pay the direct payment while Mr Y was in hospital and Mr Y had also not fully used all his direct payments. The Council also considered Mr Y needed to pay £11383.47 into his direct payment account as he had not paid his contributions and made personal withdrawals. The Council notified Mrs X of the outcome and that Mr Y could repay the amount in instalments.
16. Mrs X disputed that Mr Y owed anything more than the overpayment and stated she had informed the Council of Mr Y’s move into respite care. Officers visited Mrs X at home to explain why they considered Mr Y owed £11383.47. The Council’s records show officers explained to Mrs X that the shortfall comprised Mr Y’s unpaid contributions plus withdrawals of £5000 and £6000 made in error but not fully repaid. Mrs X also raised that she was concerned Mr Y’s personal assistants could be due back pay due to an increase in the pay rates. The officers advised Mrs X to contact the agency which supported her with paying wages.
17. The Council provided a breakdown of the transactions on Mr Y’s direct payment account to show how the debt of £11383.47 had arisen. This showed Mr Y had paid in £16,005.60 but he had not made his contribution payments of £12,097.07, had withdrawn £15,220.00 and had an overspend on insurance of £72. This made a deficit of £11383.47.
18. Mrs X appealed against the Council’s decision. She said the financial assessments had become more complicated over the years and Mr Y’s assessed contribution had kept changing which was confusing. She said the latest increase in his assessed contribution turned on what could be included such as a mobile phone. Mrs X said she was not always able to be present at the assessments and Mr Y may not have given accurate information.
19. Mrs X explained that she had repaid both the £5000 and £6000 which she had withdrawn in error. Mrs X also said she had withdrawn £4000 to pay for specialist flooring for Mr Y and travel costs for Mr Y’s personal assistant. However, this was after Mr Y had moved into respite care. Mrs X also said the agency supporting her with payroll never answered her concerns about Mr Y’s personal assistants claiming backpay.
20. The Council did not uphold Mrs X’s appeal. The Council explained:

• The direct payment was provided to meet Mr Y’s eligible care and support needs as specified in his support plan. His care package had only included funding for a personal assistant and related costs such employer liability insurance.
• Its records showed Mrs X was present during the financial assessments and had signed them as being correct;
• The bank statements show the withdrawal of £6000 was not returned to Mr Y’s direct payment account.
• The direct payment did not cover personal expenses so could not pay the cost of the specialist flooring.
• Between 7 January 2008 and 28 February 2019 Mr Y was required to pay his assessed contribution of £12,097.07.
• Mrs X had purchased more expensive liability insurance that the Council would usually agree but the Council agreed an allowance for the insurance which reduced the debt to £11,216.47. The Council asked Mrs X to pay this amount or contact it to discuss if this was not possible.

21. Mrs X made a complaint to the Council as she disagreed with the outcome of her appeal. In response the Council explained that Mr Y’s direct payment could only be used to employ his personal assistant. Payment for personal items should be made from a client’s own money and then could be taken into account in the financial assessment if the expense was considered to be disability related expenditure. The Council also said it accepted financial assessments can be difficult to understand but Mrs X was present at the assessments so had the opportunity to seek clarification. She also could have appealed if she disagreed with the outcome of the assessments. The Council agreed to make an allowance for Mrs X’s liability insurance.
22. Mr Y is again in receipt of direct payments which are provided by a managed bank account.
23. The Council has said Mrs X has now provided additional receipts which it considers to be disability related expenditure so reduces Mr Y’s client contribution by £3.09 per week from 2018. This in turn reduces the debt to £11,069.63.
24. In making her complaint Mrs X has said the Council did not take account of the fact she may need to pay back pay to Mr Y’s personal assistant. The Council has said it advised Mrs X to contact the agency who supported her with the payroll to resolve any queries with the personal assistant’s rates of pay. The agency held a credit which could cover back pay. Mrs X had not signed a form which would allow the agency to pay the credit to the Council to cover any claims for backpay.

Analysis

25. The Council’s position is the arrears arose on Mr Y’s direct payment account as he had not paid his contribution and had made personal withdrawals. The evidence supports the Council’s position. The breakdown of the arrears shows Mr Y had not fully paid the required contributions over a number of years. The Council had explained to Mrs X of the requirement for Mr Y to pay his contribution following its audits. The Council’s records show Mrs X was present at the financial assessment in 2018 and signed it so she would have been aware of the contribution Mr Y needed to pay. Mrs X disputes she was present at some financial assessments but she had managed Mr Y’s direct payment account for a number of years so would be aware he needed to pay a contribution.
26. The Council also considers the arrears arose as Mrs X made a withdrawal of £6000 by mistake in 2018 which she says she repaid. The Council’s position is the bank statements do not show this amount was repaid. As there is no evidence to show Mrs X repaid the £6000, I cannot say there is fault by the Council.
27. Mrs X also withdrew £4000 for flooring for Mr Y. The direct payment agreement sets out what direct payments can and cannot be used for. This states it cannot be used for household maintenance. So, I am satisfied the Council is not at fault for considering the withdrawal of £4000 to be a personal withdrawal and not covered by the direct payments.
28. Mrs X considers the Council should have included more items of disability related expenditure for Mr Y when carrying out the financial assessment to determine what contribution he should pay. It was open to Mrs X to challenge how much Mr Y was being asked to pay when the Council carried out the financial assessment. In any event the Council has now included further disability related expenditure to reduce Mr Y’s contribution. In doing so, the Council also gave Mrs X the opportunity to claim the flooring as disability related expenditure.
29. The Council continued to pay Mr Y’s direct payments when he was admitted to hospital and respite care. I do not have sufficient information to know if the Council is at fault for continuing to pay the direct payments. But I will not pursue this further as it did not cause significant injustice to Mrs X and Mr Y. Mrs X was aware Mr Y was not entitled to the direct payments while in hospital and rehabilitation care. I understand the Council recovered the over payment from Mr Y’s direct payment account.
30. The evidence shows the Council advised Mrs X on her concerns about backpay and advised how to claim the credit from the agency. So, I am satisfied the Council dealt with Mrs X’s concerns.
31. I understand Mrs X strongly disagrees Mr Y owes £11,069.63. But I have not seen any evidence of fault in how the Council reached this decision so I cannot question its decision.

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Final decision

32. There is no evidence of fault in how the Council reached its decision that Mr Y has arrears on his direct payment account and owes £11069.63 to the Council.

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Investigator's decision on behalf of the Ombudsman