Summary: The complainant says the Council did not properly manage his direct payments account resulting in a shortfall in that account. The Council says it calculated the complainant’s contribution to care costs following notice of changes in his benefit income. It sent a letter explaining how he should pay his contribution into the direct payments account. The Council also explained the direct payment account can only be used to pay for approved respite care and it had concerns about some withdrawals made. The Ombudsman finds the Council acted without fault in managing the direct payments account and in meeting the complainant’s social care needs.

The complaint

1. The complainant, whom I shall refer to as Mr X complains that the Council failed to:

• Properly assess and review Mr X’s care needs and financial contribution for the services needed to meet those needs. This includes respite care during the time his carer, Miss Y, spent time in hospital receiving treatment;
• Properly assess and review the care needs and provision to support Miss Y in her role as carer;
• Advise Miss Y and Mr X when respite care payments ended and to give them advice on managing the direct payments account.

2. Mr X says these failings caused stress and anxiety to the family. The family had successfully managed the direct payments previously and found allegations they had not properly used the direct payments shocking and upsetting. Mr X says this has resulted in the Council not covering respite care which Miss Y has had to fund while in hospital.

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The Ombudsman’s role and powers

3. 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)
4. If 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. In considering this complaint I have:
• Spoken with Miss Y and read the information presented with her complaint;
• Put enquiries to the Council and reviewed its responses and information sent in support of that response;
• Researched all relevant law, guidance and policy.

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What I found

6. In December 2014 following an assessment of Mr X’s social care needs, the Council awarded Mr X direct payments so he could access 14 hours support to meet his needs. Miss Y believed Mr X needed 18 hours support but the Council disagreed.
7. The Council gave Mr X and Miss Y information on how to use direct payments. Mr X and Miss Y say they never received this information although they asked for it several times. However, they entered a contract in June 2015 for the direct payments. The contract says the Council will review the care plan and direct payments each year. Under the contract Mr X agrees to:
• use his direct payments to buy only the services detailed in his care plan and;
• use respite or one- off payments agreed by the Council for the agreed purposes and to provide proof of how he spent the money.
8. In April 2016 the Council says money withdrawn from the direct payments account did not match the usual withdrawals to meet Mr X’s care needs. The Council says it wrote to Miss Y asking her to explain the withdrawals. The letter says the Council has audited the account. The letter says this audit shows a withdrawal of £203.71 for which the Council could not find any approval or explanation. The letter asks Mr X to pay the sum back into the direct payments account. The letter explains that any failure to comply with the terms of the direct payments contract may result in the removal of direct payments and the Council funding support direct. In commenting on my draft decision Miss Y says she paid this sum to HMRC from her own bank account not Mr X’s direct payments account.
9. The Council again assessed Mr X’s needs in December 2016. The assessment noted Miss Y believed Mr X needed ‘round the clock’ support (although Miss Y says she does not recall saying that) and the direct payments to provide it.
10. Miss Y told the Council in December 2016 she needed to arrange respite care for Mr X to cover her hospital treatment due in January 2017. The Council awarded Mr X seven nights support for respite care costing £630. Miss Y agreed to send in bank statements to show she had used the money to cover respite care.

Respite care application September 2017

11. In September 2017 Miss Y asked for a respite care payment. Before agreeing to the application, the Council said it needed to review Mr X’s care needs. Miss Y says before this the social worker had always arranged respite care.
12. The Council assessed Mr X in October 2017. The assessor noted Miss Y had never left Mr X unsupported overnight. The assessor noted Mr X said he would be very anxious if his mother left him at home overnight without support. Mr X stays at home alone when Miss Y goes out during the day for shopping, but Miss Y does not leave Mr X for long. The assessor noted Miss Y wanted direct payments so she could employ her sisters to look after Mr X when Miss Y goes into hospital for treatment. The assessor noted Miss Y has mobility problems and needs support in her caring role. The Council referred Miss Y to the carer’s centre for support in September 2017.
13. Following this assessment, the Council refused the application for a payment for respite care. In giving its reasons the Council said Miss Y had not shown any evidence that Mr X would be at risk if left alone at home. The Council says the 14 hours support paid for through direct payments is enough to cover any respite Miss Y needs to cover support for Mr X.

Respite care and withdrawal of sleep over payments from the direct payments account

14. In November 2017 the Council wrote to Miss Y saying that an audit of the direct payments account showed she had paid Mr X’s personal assistant for sleep overs. The letter says Miss Y cannot pay for sleep over support unless approved by Mr X’s social worker. Therefore, Miss Y should repay any payments made for sleepover support from 1 April 2017 to November 2017 into the direct payments account. Miss Y denies ever receiving this letter. During this time Miss Y says Mr X had more than ten social workers. One may have mentioned something about sleep over issues but never raised it formally with her or Mr X.
15. In January 2018 the Council wrote to Miss Y expressing concerns that she had not provided information showing why she withdrew money from the direct payments account. The Council asked what services she had bought using the money she had withdrawn. Again, Miss Y says she did not receive this letter.
16. Miss X asked for an assessment review meeting. At that meeting in August 2018 the Council discussed with Miss Y its concerns about use of the direct payments account. Officers explained the need for greater transparency in the audit trail. In commenting on my draft decision Miss Y says she asked the officers to stop the meeting. They had mentioned the issue of fraud in front of Mr X who became distressed.
17. The Council says while Miss Y believes she has regularly received direct payments for respite care it has approved only three payments. The Council checked with the hospital to see how long Miss Y stayed in hospital and decided Miss Y had used direct payments for respite care mistakenly believing the Council would agree it. Therefore, the Council asked her to repay the money spent on unauthorised respite care into the direct payments account. To help the family the assessor recommended the Council consider moving to a ‘managed account’ arrangement where a third party would manage the direct payments account for Mr X.
18. The assessor did not identify any risk to Mr X during the night and decided Mr X did not need respite care when Miss Y went into hospital.
19. Miss Y says Mr X’s conditions have worsened in the last few years. Therefore, Miss Y says she wants the Council to explain why Mr X needed respite care for which it made a payment in 2017, but no longer needed it in August 2018.
20. The Council says it tried to discuss and assess whether Mr X needed respite care when Miss Y entered hospital in December 2018. The Council says Mr X and Miss Y did not engage with the assessment and so it could not complete it. The Council therefore did not offer a respite care payment. Miss Y meanwhile says she had to pay for respite care to avoid putting Mr X at risk while she underwent hospital care and could not stay in the home to look after him.
21. The Council says it would offer a respite payment if the Council assesses the applicant to be at risk and in need of respite. It approved respite payments in 2016 for 10 sleep over nights. Between April 2016 and March 2017, the Council approved 21 sleep over nights. Since 2017 the Council says the support plan in place meets Mr X’s assessed needs. The review completed in August 2018 confirmed Mr X did not need any respite because Mr X would not be at risk overnight. Therefore, the Council says it has not agreed to pay any further respite costs.
22. Although the Council followed up concerns about withdrawals of money since 2017 it has not undertaken a formal investigation or alleged fraud. The Council has said it has concerns Miss Y has not managed Mr X’s direct payments fund properly. The unexplained withdrawals and Mr X’s failure to pay his contribution mean there are significant arrears on his direct payments account. The Council cannot allow that to continue indefinitely and may need to move to a managed account or direct provision of services.

Carer assessments and support

23. The Council says Miss Y’s carers assessment decided she did not qualify for carer’s support or payments. However, it referred her to the carer centre for informal support. The Council has also begun social care assessments of Miss Y’s own needs, but they have never reached the planning stage. Miss Y’s frequent poor health and stays in hospital have prevented the Council from agreeing what support Miss Y needs or planning its delivery. This may have an impact on her ability to support Mr X in future. During this time Miss Y says she had the support of a social worker for about three months and an emergency contact button but no additional support.

Contribution to care costs

24. Mr X receives funding for 14 hours support per week paid four weeks in advance. Annual reviews of his needs and support plan have not resulted in any changes.
25. Miss Y manages Mr X’s benefits. Those benefits changed in October 2017 when Mr X received an increase in his Employment Support Allowance. The Department of Work and Pensions also awarded Mr X a Personal Independence Payment. This affected Mr X’s liability to pay contributions towards his care costs. The increase in income meant he now had to contribute £61.41 per week towards those costs whereas until then he had not paid any contribution. Usually the Council backdates increased charges to the date on which the Department of Work and Pensions awards the benefits (October 2017). The Council says it decided to help the family and so backdated the contributions to 1 April 2018.
26. The Council wrote to Mr X on 24 April 2018 explaining that it had calculated his contribution to the care costs following a visit from an officer in its Benefits Maximisation Service. The letter explained the Council would pay Mr X’s direct payments after the Council deducted his contribution to his care costs. The letter says Mr X should “…top up [his] direct payments account …so that [he] can pay the relevant care invoices…”
27. Miss Y challenged the increase from zero contributions to £61.41 because this made a significant difference to Mr X’s income. Miss Y told the Council she believed Mr X should receive a higher rate of benefit. The Council explained that it must assess Mr X’s contribution to his care costs using his current income. If that changed through a review by the Department of Work and Pensions, it would review the assessed contribution. The Council said it could not waive the contribution because Miss Y believed the Department of Work and Pensions had failed to correctly assess Mr X’s claim to benefits.
28. The Council says Mr X has not paid any contributions into the direct payments account. The Council following usual practice continues to pay Mr X’s direct payments into the direct payments account net of Mr X’s contribution. Therefore, the Council says, if Mr X does not pay his contribution then the direct payments account will not cover all his support costs. In February 2019 the Council offered a repayment plan to recover the amount owed to the account. The Council said it would consider evidence that Miss Y had paid for support from her own funds when deciding what contributions remained outstanding. In February 2019 Mr X owed £2,824.86 in unpaid contributions. Miss Y says they did not receive any offer to take up a repayment plan.

Analysis – has there been fault leading to injustice?

29. My role is to consider whether the Council properly assessed Mr X’s care needs and his contribution to his care costs. It is not my role to decide what Mr X’s direct payments should be or what support he should receive.
30. Mr X clearly anticipated the Council would grant his applications for respite payments because it had previously awarded payments for respite care in the years up to 2017. Councils must assess each application for respite care on its own merits by looking at what Mr X’s needs are when he made the application. The Council decided in August 2018 Mr X did not need overnight help and that therefore he posed no risk during the night when Miss Y spent time in hospital.
31. Miss Y says Mr X needs support overnight and so she has withdrawn money to cover the costs of respite care which the Council should pay for. Miss Y says Mr X does not receive enough in benefits to cover the costs of respite care.
32. During his assessment Mr X told the assessor he would experience anxiety if left alone at night. However, the assessor in exercising professional judgement decided having considered all the relevant information Mr X did not pose a risk at night calling for respite care.
33. Mr X and Miss Y cannot understand why the Council previously offered payments for respite care but now says Mr X does not need it. Assessments must reflect the needs of the person when assessed. There is no evidence the assessor failed to properly consider all available information when deciding in 2018 Mr X did not need respite care payments. Therefore, I cannot challenge the merits of that assessment and find the Council acted without fault in refusing the application for respite payments.
34. Miss Y’s health has resulted in several periods in hospital. Miss Y may have her own social care needs affecting how much support she can offer Mr X. Those needs have yet to be fully assessed. However, under the terms of the Direct Payments Contract Mr X may only make withdrawals from the direct payments account to cover previously approved respite care. Some withdrawals the Council says, may not have been used for approved respite care or other care needs set out in the care plan. That is why it has asked Mr X and Miss Y to explain withdrawals. The Council has not alleged fraud or started a formal investigation but has asked for clarification of those payments. The Council has a duty to properly oversee the use of direct payments and therefore I find it acted without fault in asking for explanations for any unexpected withdrawals.
35. Miss Y may be right in saying the Department of Work and Pensions has not properly assessed Mr X’s claim to benefits. If Mr X believes he is not receiving his full claim to benefit, he may appeal to the Department of Work and Pensions. The Council must calculate Mr X’s contribution to his social care costs using the benefit income awarded by the Department of Work and Pensions. It has done that, and calculated Mr X must pay towards his costs. The Council correctly paid his direct payments less his contribution and this has reduced the balance in Mr X’s direct payments account. I find the Council acted without fault in assessing Mr X’s contributions.
36. Miss Y says she and Mr X did not receive several important letters. There is no evidence of them being returned to the Council. I must conclude therefore the Council sent the letters. Miss Y and Mr X would notice the Council had reduced its payments into the direct payments account and if asked officers would have explained why. The letter sent to Mr X telling him he must now pay a contribution also explains how he should pay that contribution into the direct payments account. I find the Council acted without fault in ensuring Mr X knew he must now pay a contribution and how he should do that.

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Final decision

37. In completing my investigation, I find the Council acted without fault in managing the direct payments paid to Mr X. I also find it acted without fault in its decision not to award further respite care costs payments.

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Investigator's decision on behalf of the Ombudsman