Summary: There is no evidence of fault by the Council. It was legally entitled to recover an overpayment of benefit from a service user, who had capacity to manage his finances.

The complaint

1. The complainant, Mr X, is represented by an advocate. He claims the Council has failed to consider whether to exercise discretion to recover arrears from contributions towards care charges arising due to a backdated benefit claim.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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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How I considered this complaint

4. I read the papers put in by Mr X.
5. I considered the Council’s comments about the complaint and any supporting documents it provided.
6. Mr 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

Key analysis

7. Mr X is a vulnerable adult. Mr X has access to his bank account, into which his benefits are paid. His stepmother, Mrs Y is recorded on the Council’s files as being his financial agent and letters relating to the charges for care he receives go to her.
8. From February 2021 the Council financially assessed Mr X as not contributing towards the charge for his care. The letters sent to Mrs Y said ‘Should there be any change to the service users financial circumstances before the next annual review you have a duty to tell us immediately as this could affect the amount you have been calculated to pay. Any adjustments to the charge based on this information will be effective from the date at which the service users financial circumstances changed.’
9. A Learning Disability support worker from a charity helped Mr X apply for Personal Independence Payment (PIP) in May 2021. Mrs Y says she was not aware of this.
10. Mr X was awarded PIP on 16 November 2021. This backdated payment to 23 April 2021 went into his bank account.
11. Mr X’s social worker told the Council about the PIP on 10 January 2022. The Council wrote to Mrs Y the same day, to tell Mr X the cost of his care was now assessed to be £54 per week and he owed £1620 in backdated charges.
12. Mrs Y said that when she became aware of what had happened, Mr X had spent the PIP money and he could not repay the charges.

My analysis

13. Mr X has paid the care charges from November 2021 but says that it is unfair he has to pay the backdated charges.
14. The Council is legally entitled to recover the backdated charges from Mr X. This is not in dispute. I asked the Council if it had considered exercising discretion not to recover the backdated charges.
15. The Council has said ‘while the support worker may have made the application for PIP, Mrs X has sole authority from her son to oversee his finances and does have oversight of the funds her son holds.’

16. The Council said ‘Mr X does not have a Department of Work and Pensions (DWP) appointee and therefore the DWP deem Mr X to have capacity. Mr X does not get carers allowance. Further, Mr X has had several rental tenancy agreements, although his rent goes directly to the landlord via housing benefit.’

17. The Council says that Mr X has capacity it cannot dictate how he uses funds. The Council has said that it made Mrs Y aware that backdated charges could be recovered and to protect the public purse it was reasonable to request repayment of the funds. The Council says it is willing to talk about a repayment plan but will not write off the arrears.
18. I understand the difficulty Mrs Y has, in trying to help manage Mr X’s finances when others are involved. I also understand that Mr X may have been unaware of the reason for the money in his bank account as it was so long since he made the application. However, the Council is legally entitled to recover the money and has reached a decision to do so. So, I can find no evidence of fault in the decision.

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Final decision

19. I have completed my investigation of the complaint. This complaint is not upheld, as there is no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman