The Ombudsman's final decision:
Summary: Mrs X complained about the late payment to her son, of overpaid contributions he made towards his care costs. We upheld the complaint, finding the Council delayed in refunding this money. This put Mrs X to unnecessary time, trouble and uncertainty. The Council has accepted these findings. At the end of this statement, we set out the action it has agreed to remedy that injustice.
- I have called the complainant ‘Mrs X’. She complains about the late payment of £1200 to her son, ‘Mr Y’, in overpaid client contributions towards his social care. This, after the Council identified the overpayment in November 2022.
- Mrs X says she has experienced frustration in waiting for this payment and uncertainty, not knowing the cause of the delay.
The Ombudsman’s role and powers
- 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 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)
How I considered this complaint
- Before issuing this decision statement I considered:
- an earlier complaint Mrs X made to the Ombudsman and information gathered during that;
- information provided by the Council in response to my enquiries;
- the Ombudsman’s published guidance on remedying complaints.
- I gave Mrs X and the Council a draft version of this decision statement and invited them to provide any comments or further evidence. I considered their responses to the draft decision before deciding to complete my investigation and issue this final statement.
What I found
- Mrs X is a single woman in her seventies. She lives with her son, Mr Y, who is an adult with learning disabilities. He does not have capacity to manage his financial affairs.
- Mr Y receives social care. The Council has agreed a personal budget for what it costs to meet his care needs. It has assessed Mr Y should contribute to that budget. All money to meet Mr Y’s care needs goes into a direct payment account to enable Mrs X and Mr Y to choose how to meet his care needs. Mrs X does not manage the direct payment account. She uses a third-party organisation to do this, who act on her behalf, with Mrs X acting as Mr Y’s appointee.
- Mrs X first complained to us in July 2022. There were several parts to her complaint, which the Council had considered before she contacted this office. Part of Mrs X’s complaint concerned the Council asking for around £3000 in backdated contributions from Mr Y towards the cost of his care, dating back several years. The Council told Mrs X in May 2022 that it had completed “a full reconciliation” of Mr Y’s contributions. It considered Mr Y had now overpaid contributions of £1665. So, it would pay him this as a refund.
- Later, the Council corrected this overpayment to £1511. It refunded this money to Mr Y’s account. When we investigated this complaint, we asked the Council why the amount changed. In mid-November 2022 it provided an explanation. It then went on to say that having further reviewed Mr Y’s account it had discovered it owed him a further refund of £1200. It said it would now pay this money to Mr Y’s account.
- Mrs X did not challenge the Council’s explanation or changed calculation. When we completed our investigation in March 2023, we did so understanding the Council would pay this refund. Both on closing the case and before doing so, we reminded the Council it said it would pay £1200 to Mr Y’s direct payment account. We did this after Mrs X let us know Mr Y had not received this money.
- When, in May 2023, Mrs X let us know she had still not received the payment we agreed to investigate this issue.
- The Council has clarified to us how the £1200 overpayment occurred. It says that when, in May 2022 it looked at Mr Y’s direct payment account, it failed to include a credit note it issued between April 2016 and August 2018 for this amount. It should have offset this against various amounts for which it had invoiced and the payments Mr Y made.
- It has said that after it identified the overpaid amount in November 2022, its finance team overlooked the need to pay this money to Mr Y. Its corporate complaint team sent reminders, but these too were overlooked until late March 2023.
- At that time the finance team acted on a reminder. It told the third-party organisation managing Mr Y’s direct payment account to make the £1200 payment at the beginning of April 2023.
- The third-party organisation failed to do so. Acting on a reminder, it attempted to do so in early June 2023. But this time it entered the wrong details for Mr Y’s account and the money ‘bounced back’. Earlier this month the third-party organisation tried making the payment again and this time it was successful.
- I consider we must find fault with the Council for the delay in Mr Y receiving the refund due of £1200. If the Council identifies it owes a refund to clients for contributions overpaid, then it should do so quickly. I consider any delay of more than a month, likely to be a fault.
- In this case the fault became compounded by the Council’s failure to rectify its non-payment for around five months. This was despite several reminders from this office and internal emails which alerted it to the delay.
- I consider Mrs X, as Mr Y’s representative, experienced some injustice because of this delay. She had unnecessary time and trouble chasing the missing refund to her son’s account. She also experienced uncertainty not knowing why the Council had not repaid the money and receiving no explanation for the delay.
- I recognise it then took a further three months for Mr Y to receive payment. But this second delay was not because of the Council, which had given the third-party organisation used by Mrs X clear instruction. So, while Mrs X experienced similar frustration during this time, I do not consider this forms part of her injustice.
- I have not examined further the cause of the overpayment or the initial failure in reconciling Mr Y’s account. It is now several years since the Council judged Mr Y had underpaid contributions and our earlier investigation explained to Mrs X why we would not revisit that judgement. I consider it was fault for the Council not to identify the full scale of the overpayment of contributions later paid by Mr Y when it checked his account in May 2022. But the Council corrected this in November 2022 on re-checking its calculations. When it identified the extra £1200 payment owed to Mr Y, I consider this remedied any injustice arising from the incomplete check it undertook previously.
- The Council accepts the findings I have set out above, which I welcome. It has agreed to remedy the injustice caused to Mrs X set out at paragraph 19. Therefore, it will, within 20 working days of this decision:
- provide Mrs X with a further apology, accepting the findings of this investigation;
- make a symbolic payment to Mrs X of £100 in recognition of the time, trouble and uncertainty she experienced as a result of its fault.
- The Council will provide us with evidence it has complied with the above actions.
- For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mrs X. The Council has agreed to take action that I consider will remedy that injustice. Consequently, I can complete my investigation satisfied with its response.
Investigator's decision on behalf of the Ombudsman