Summary: Mr X complains the Council was wrong to claim back his carer’s personal budget for 2021 when he was unable to spend it, resulting in him having to spend more of his own money on a holiday in 2022. The Council failed to take account of Government guidance on the need for greater flexibility over the use of direct payments. It needs to pay Mr X £2,079 plus £250 for the time and trouble it has put him to.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council was wrong to claim back his carer’s personal budget for 2021 when he was unable to spend it, resulting in him having to spend more of his own money on a holiday in 2022. Mr X has also complains about the Council’s complaints procedure and the failure to appoint someone independent of the Council to investigate his complaint.

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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)

• 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)

3. 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

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

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What I found

What happened

5. Mr X’s son has a learning disability. He also has a lung condition. He lives with his father who is his main carer. He usually goes to college four days a week and spends a night a week with a care worker. However, for much of the COVID-19 pandemic, he could not go to college or stay overnight with a care worker. Mr X therefore had to provide more support for his son. His increased caring responsibilities prevented Mr X from working.
6. Mr X has a carer’s personal budget. He receives this from the Council as a direct payment.
7. In October 2020 Mr X signed a carers direct payment agreement. This said the money could be used as:
• “Payment for a break away in a care home for the cared for person to give a total break if they agree to it or it is in her/his best interests. Purchasing replacement care in a care home on a short-term temporary basis (for example a block of overnight support to relieve the carer). Part or full-time payment for a break for the carer and the cared for adult to go away together for a day or longer. Reasonable expenses for such breaks include: travel costs (rail, flights, petrol, care hire), accommodation, subsistence, hire of mobility aids (portable hoist, wheelchair).”
8. It also said Mr X agreed to:
• “Use the direct payment money in the way that has been agreed by the local authority. If you want to change the way that you use it you must tell us so we can decide if the new way is acceptable”; and
• “Comply with the financial audit and repay any unspent or misused money on request. Please note: the direct payment will not be paid again if you do not comply with the audit and/or review”.
9. In November 2020 the Council paid Mr X a carer’s personal budget of £2,079 to be used over the next 12 months.
10. The second national lockdown started on 5 November. It ended on 2 December with the introduction of a stricter three-tier system.
11. On 2 January 2021 the third national lockdown started. The Government published a roadmap for lifting the lockdown on 22 February.
12. On 12 April self-contained accommodation reopened but restrictions remained in place on different households mixing.
13. From 17 May up to six people or two households could mix indoors. Hotels, pubs and restaurants reopened.
14. On 14 June the Government delayed step 4 of the roadmap until 19 July, to provide for an acceleration of the vaccination programme. Most legal limits on social contact were lifted on 19 July.
15. Mr X says the Council did not discuss his use of the carer’s personal budget until it reviewed his use of the direct payment in November 2021. He told the Council he had not spent the money but planned to use it to help pay for a significant overseas holiday in 2022 along with his 2022 carer’s personal budget. The Council told him it would not pay his 2022 carer’s personal budget until he had returned the unspent money. Mr X said this was not fair as they had been unable go away in 2021. The officer he spoke to agreed to raise this with their manager.
16. In January 2022 the Council told Mr X he could not keep his payment for 2021. It said it would increase the payment for 2022 once he had repaid the 2021 personal budget.
17. Mr X called the Council on 24 February to question its decision.
18. The Council e-mailed Mr X on 21 March. It said it expected him to return the unspent money. Alternatively, it said he could use the funding already available to him and it would top it up with the additional money it had agreed to pay him.
19. In March Mr X took his son abroad for the holiday he had planned in 2021. He says he could not have taken him away in 2021 because of the need for him to be vaccinated before travelling abroad, including the need to wait three months between vaccinations. He says he planned a significant holiday to make up for the restrictions which had prevented them from going away in 2021.
20. Mr X complained about the Council’s decision.
21. When the Council replied to Mr X’s complaint in August, it:
• referred him to the direct payment agreement he had signed in October 2020, which required unspent money to be repaid;
• said there had been periods in 2021 when the country was not in lockdown, including from 17 May when hotels reopened;
• international travel had been possible since 19 July 2021;
• apologised for the delay in responding to him between November 2020 and February 2021; and
• apologised for the delay in allocating his complaint for investigation and for not incorporating his additional comments into the summery of his complaint.

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

22. During the COVID-19 pandemic the Government issued guidance on using direct payments during, which it updated regularly. The guidance issued on 19 July 2021 said:
• “LAs and CCGs will proactively communicate with you to ensure you stay safe and are assured about the LA or CCG’s concern for your wellbeing.”
• “Where possible, you should keep using your direct payments as agreed in your care and support plan. But there may be situations where you need to organise your care and support in different ways as a result of the COVID-19 outbreak”.
• “This is allowed. It has always been possible under the Care Act and direct payment regulations for you to use your direct payments flexibly providing it continues to meet your assessed needs. We expect LAs and CCGs to be as flexible as possible when you have made reasonable decisions to use your direct payment differently in a way that keeps you safe and avoids your care breaking down.”
• “Unspent money from your direct payment should continue to be made available to you to manage your own care and support in the way that works for you during this time, keeps you safe, and meets your health and wellbeing needs.”
23. For six months after the Council paid Mr X his carer’s personal budget, it was not possible for them to go away on holiday. After that it would have been possible for them to have a holiday in the UK, but Mr X wanted to take his son abroad to make up for the restrictions they had both experienced. While overseas travel was in principle possible, continuing restrictions in other countries meant it was not necessarily a realistic option. Besides, Mr X wanted to wait until his son had been fully vaccinated. That took account of the health risks as well as the practicalities of international travel. Other options may have been available, for instance respite in a care home, but the purpose of a direct payment is to allow people greater freedom of choice.
24. When the Council reviewed Mr X’s use of the direct payments in November 2021, it was too late for him to make alternative arrangements. The Council’s response made no reference to and did not take account of the Government guidance on the need for greater flexibility over the use of direct payments during COVID-19. That was fault by the Council. The Council simply referred to the direct payment agreement signed in October 2020. But that did not take account of COVID-19.
25. The Council’s fault caused injustice to Mr X, as it resulted in him paying more for the holiday than would have been the case if the Council had allowed him to carry the 2021 direct payment over and use it along with the payment for 2022.
26. The Council has accepted some fault over the handling of Mr X’s complaint and apologised. However, I cannot criticise the Council over the perceived lack of independence. Under the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009, councils have to have their own complaints procedures. However, there is nothing in the Regulations which requires them to commission independent investigations. The Ombudsman is there to provide an independent complaints service, if people remain dissatisfied with a council’s response to their complaint.

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Agreed action

27. I recommended the Council:
• within four weeks writes to Mr X apologising for the lack of flexibility over the use of his direct payments and pays him £2,079 plus £250 for the time and trouble involved in pursing his complaint.
28. The Council has agreed to do this. It should provide us with evidence it has complied with the above actions.

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Final decision

29. 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