Summary: Ms X complains the Council has failed to deal properly with her over the use of her direct payments during the COVID-19 pandemic, having ignored Government Guidance and then accused her of misusing them, leaving her distressed and afraid of accepting further direct payments. The Council failed to reassess her needs in May 2021, failed to take account of the need for flexibility over the use of direct payments and failed to address her questions about the use of her direct payments. This caused avoidable distress and left Ms X without the support she needed. The Council needs to apologise and pay financial redress.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains the Council has failed to deal properly with her over the use of her direct payments during the COVID-19 pandemic, having ignored Government Guidance and then accused her of misusing them, leaving her distressed and afraid of accepting further direct payments.

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The Ombudsman’s role and powers

2. 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)
3. 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, sections 30(1B) and 34H(i), as amended)
4. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

5. I have:
• considered the complaint and the documents provided by Ms X;
• discussed the complaint with Ms X;
• considered the comments and documents the Council has provided in response to my enquiries;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Ms X and the Council, for me to consider before making my final decision.

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What I found

What happened

6. Ms X has fibromyalgia and post-traumatic stress disorder. These are variable conditions which affect her ability to access the community.
7. Ms X’s June 2017 direct payment agreement (unsigned) says:
• “You must only use the Direct Payments for the sole purpose of a provision of a care package as outlined in your Support Plan”.

2020

8. The Council completed a review of Ms X’s needs on 30 March, which said:
• she had stopped attending university because of a lack of support;
• she had stopped using an employment support agency as she was unhappy with its services;
• she needed to find a personal assistant to support her;
• her personal budget was £24.20 a week to provide 2 ½ hours a week of support with personal care and 14 hours of support a year in maintaining relationships and accessing the community.
9. When the Council updated Ms X’s care and support plan in June it provided for:
• a one-off payment of £122.50 for 14 hours of support for an annual holiday to maintain community links;
• a one-off payment of £147 for 3 hours a week for 5.6 weeks to get to college twice a week; and
• £25 a week to maintain personal care and dignity when needed.
10. In April the Council sent people receiving direct payments various pieces of guidance on their rights and responsibilities as employers within the context of COVID-19. It did not send them the Government guidance issued on 21 April and updated regularly after that.

2021

11. The Council reviewed Ms X’s needs in May. The review said:
• she had used some of her direct payments to buy a hand-held vacuum cleaner and some art supplies to keep her occupied during the lockdown;
• she had received information from her employment support agency on how she could use the direct payments;
• COVID-19 restrictions made it difficult to receive support from her personal assistant;
• they had set up a twice weekly video link, so the personal assistant could support her remotely;
• the personal assistant would be leaving in the summer, so the employment support agency would have to help her find a replacement;
• she had been in hospital many times since January 2021 because of an undiagnosed health condition and had spent a lot of time in bed; and
• she had enrolled on an online course, which gave her some structure.

The Council made no changes to Ms X’s care and support plan.

12. When the Council e-mailed Ms X on 7 September, it said the direct payments team, having audited her account, had questioned spending on food and from unknown companies. Ms X said she had bought “gifts” (payments in kind) following the receipt of care from a neighbour, who had supported her with personal care when no one else was available. She said she had mentioned this during her last review. She apologised for not providing evidence of the online course she had been attending.
13. The Council told Ms X the direct payments were to pay:
• her personal assistant to meet her needs;
• for insurance; and
• for the help she received from the employment support agency.

It asked if her personal assistant was still supporting her. It also asked for more information about the spending on food. It said she should not be using the direct payments to buy gifts for her neighbour.

14. Ms X pointed out that she had told the Council her personal assistant would be leaving, so the employment support agency would need to help her find a replacement.
15. Ms X sent the Council a link to the Government’s guidance on Using direct payments during the coronavirus outbreak, which the employment support agency had sent to her. The guidance encouraged the flexible use of direct payments. This included paying for activities at home instead of in the community. It said “ideally” people should agree alternative uses of direct payments in advance, but noted this may not always be possible. It encouraged developing a contingency plan.
16. The Council suggested discussing Ms X’s use of the direct payments on 14 or 15 September. She said she needed more time, as she wanted to familiarise herself with how it expected her to meet her needs when her personal assistant was not available. Ms X consulted the employment support agency. It told her the gifts were “payments in kind” and offered to write a letter of support.
17. Around this time Ms X recruited a new personal assistant.
18. When the Council reassessed Ms X’s needs in November, it identified significant increases in her needs because of her ongoing health problems. Her updated care and support plan identified unmet needs relating to:
• managing and maintaining nutrition;
• managing personal hygiene;
• managing toilet needs;
• being appropriately clothed;
• maintaining a habitable home;
• making use of the home safely;
• developing and maintaining family or other personal relationships;
• accessing and engaging in work, training, education or volunteering;
• making use of necessary facilities or services in the local community.
19. The care and support plan provided for a personal budget of £213.40 a week to pay a personal assistant for 23 hours. It said the employment support agency would manage the direct payments and would need to “look at a contingency personal assistant” if her main personal assistant was unavailable.

2022

20. On 15 February Ms X asked for a change in her support worker, as she had not provided adequate support, failed to keep accurate records and she still did not have access to her care account.
21. In March Ms X ended her personal assistant’s contract as they had not passed their extended probationary period. She asked the Council about using her direct payment to pay for food deliveries, as she could not get out to buy food. The Council identified the need to respond as soon as possible but did not do so. Ms X said she would hold off recruiting another personal assistant until she had been able to discuss her issues with the Council and was waiting for someone to contact her. The Council assigned someone else to work with Ms X, who contacted her, but they did not speak for long as Ms X was having problems with her mental health.
22. On 11 April Ms X sent several e-mails to the Council. Ms X reminded it that she needed to speak to someone about using her direct payments. She also said she no longer wanted to receive its services and would arrange her own care. She put this down to the lack of support, which had affected her mental health. The Council told Ms X it would keep her case open for two weeks before closing it. It invited her to get in contact if she needed any support.
23. On 28 April Ms X complained to the Council about the failure to follow Government guidance on using direct payments during the COVID-19 pandemic. She noted this said councils would proactively communicate with people, but she had heard nothing from the Council. She explained that she had become ill in January 2021. She said she had used the direct payments in time sensitive and emergency situations as she expected the Council to review her needs in February 2021. She said she had repaid her neighbour, who had supported her when she needed help washing her bedding. She said she had asked for advice on how to log the transactions but never received a response. She said no one she spoke to at the Council appeared to be aware of the Government’s guidance on using direct payment during COVID-19.
24. On 5 May Ms X complained the Council had asked her to pay £173.24 when she had only received one hour of support from her personal assistant. When she questioned this, the Council reduced the charge to £129.93 but she received no explanation of how it came by that figure.
25. Ms X contacted the Council in May as she had received an invoice from the employment support service but could not pay it from her direct payment account. The Council told her it had frozen her account because it had been misused.
26. When the Council replied to Ms X’s complaint in May, it said:
• it apologised because she had not received the service it would have expected her to receive;
• she may not have received Government guidance on Using direct payments during the coronavirus outbreak. It was reviewing communication with clients to improve this;
• it was open to Ms X to make flexible use of her direct payments, provided her allocated worker agreed this in advance, but this did not happen. It listed 21 items of expenditure since January 2021 which it had not approved. It accepted most of them were in line with the Government guidance. It identified items costing £378.87 as falling outside the guidance but said it would not seek repayment;
• it had now arranged direct payment sessions with staff to ensure they were up‑to-date with any changes in legislation and Government guidance;
• it apologised for the lack of communication between Ms X and her allocated worker, noting it had now allocated someone else to work with her;
• as Ms X had been struggling to recruit a new personal assistant, it offered to either commission a service for her or arrange a managed direct payment, which meant the Council would retain control of the money and a care agency would provide people to meet her needs;
• it noted Ms X wanted to wait for the outcome of her complaint before moving forward with support from the Council;
• it offered a face-to-face meeting with her support worker to facilitate a better understanding of her care needs;
• it would withdraw an invoice for £129.93 as a good will gesture; and
• her maximum weekly contribution towards the cost of her care was £43.31 a week, unless her circumstances had changed since November 2021.
27. After receiving its letter, Ms X wrote to the Council saying she could not accept withdrawing the invoice for £129.93 was a good will gesture, when she had only received one hour of support and her maximum weekly charge was £43.31 a week.

Is there evidence of fault by the Council which caused injustice?

28. The Council accepts it was at fault over the lack of communication with Ms X and that its officers may not have been up-to-date with Government guidance. This resulted in the Council accusing Ms X of widespread misuse of her direct payments. Although it subsequently agreed most of the expenditure had been meeting her needs and decided not to recover any of the misspent funds, this caused significant avoidable distress to Ms X.
29. The Council’s May 2021 review should have provided an opportunity to identify and resolve any issues with Ms X’s use of the direct payments. She told the Council they only had remote contact, so her personal assistant could not have been meeting her assessed need for support with personal care. It is also clear from the review that Ms X’s needs had changed because of new problems with her health, which meant she was spending more time in bed. This will have increased her need for support and should have prompted a reassessment of her needs. But this did not happen until November 2021. She also told it about some of the things she had spent the direct payments on (which it later questioned) and that the employment support agency had provided advice on using the direct payments. But the Council did not question any of this at the time. These failings are evidence of further fault by the Council.
30. It seems likely that if the Council had reassessed Ms X’s needs in May 2021, it would have identified the need for additional support long before November 2021. This and the missed opportunity to resolve any issues over the use of the direct payments, caused further injustice to Ms X due to avoidable distress and the lack of additional support.
31. The Council did not explain why withdrawing the invoice for £129.93 was a good will gesture. I assume this is because the assessed contribution is not directly linked to the care and support received in a particular month. It is based on what someone can afford to contribute each week towards their annual personal budget.

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Agreed action

32. Following my recommendations, the Council has agreed to within four weeks:
• write to Ms X apologising for the failure to reassess her needs in May 2021, the initial failure to take account of the need to take a flexible approach to the use of direct payments and failure to address her questions about the use of her direct payments; and
• pay her £300 for the avoidable distress has caused to her and £570 for the delay in assessing her need for additional care and support (the latter takes account of the invoice for £129.93 withdrawn by the Council).
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I have completed my investigation on the basis there has been fault by the Council causing injustice which requires a remedy.

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Investigator's decision on behalf of the Ombudsman