Summary: It was not fault on the part of the Council to expect Mr X to use its pre-paid card to access his Direct Payments in the absence of evidence the system would not work for him.

The complaint

1. Mr A (as I shall call the complainant) complains the Council insists his father (Mr X) uses a pre-paid card system to access the Direct Payments for his personal budget.

Back to top

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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

4. I considered the written information provided by the Council and Mr A. Both the Council and Mr A had an opportunity to comment on an earlier draft of this statement and I considered their views before I reached a final decision.

Back to top

What I found

5. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan.
6. There are three main ways in which a personal budget can be administered:

As a managed account held by the local authority with support provided in line with the person’s wishes;

As a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes;

As a direct payment. (Care and Support Statutory Guidance 2014)

7. Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs.
8. Some councils use pre-paid cards to pay Direct Payments. The Care and Support Statutory Guidance says, “Whilst the use of such cards can be a useful step from managed services to direct payments, they should not be provided as the only option to take a direct payment. The offer of a ‘traditional’ direct payment paid into a bank account should always be available if this is what the person requests and this is appropriate to meet needs. Consideration should be given to the benefit gained from this arrangement as opposed to receiving the payment via a pre-paid card.”

What happened

9. Mr A says the Council delayed for some time in agreeing Direct Payments for his father Mr X. He says although the Direct Payments are now agreed, and his father has set up a separate bank account to accept them, there is a further delay because the Council insists on using a pre-paid card scheme.
10. Mr A complained to the Council in 2018 about its refusal to consider paying Mr X’s payments into a bank account. The Council responded in October. It said it was the Council’s practice to pay by a pre-paid card unless agreed for “specific reasons”. It said in Mr X’s case, it seemed to be a matter of personal preference. It explained that the pre-paid card system was the most efficient way for the Council to monitor the Direct Payments system. It said as there was no compelling reason to do otherwise, it would make the Direct Payments available by pre-paid card.
11. Mr A complained to the Ombudsman. He said the Council had not given any examples of what it would consider were “compelling reasons” for the pre-paid card system not to be used. He also said the Council’s stance was in defiance of the statutory guidance which says “The offer of a ‘traditional’ direct payment paid into a bank account should always be available if this is what the person requests”.
12. The Council says that its local policy in respect of Direct Payments is under review. However, it explains that in 2015 in response to another of our investigations, it obtained guidance from the Department of Health about its use in the guidance of the phrase “should always”, in this context. The advice received from the Department of Health was that the word “should” conveyed a clear expectation but not a legal requirement. The Department of Health said “Where 'must' is used in the guidance, this is because the point ties directly to a legal duty - either in the Act itself or in regulations. Where 'should' is used, this is intended to set a clear expectation, but not to create a legal requirement. The status of the guidance is set out in the introduction, which states that: "local authorities must follow it, unless they can demonstrate legally sound reasons for not doing so".
13. After consideration of the advice the Council decided it would continue to offer the pre-paid card as its default option, but that it would consider other systems of payment if there were sound reasons why the pre-paid card would not work for someone.

14. The Council says the care agency most recently commissioned by Mr X has many service users who receive Direct Payments via pre-paid cards. It says (with reference to the statutory guidance discussion of benefit from using a bank account instead of a pre-paid care) it is unclear what additional benefits would accrue to Mr X from using a bank account which would outweigh the benefits of a pre-paid card, and why the pre-paid card would not be workable for him.
15. Mr A says the Council has deliberately mis-characterised the uses for the Direct Payment and says his father would have a greater choice of employee (other than using a care agency) if he could have the money paid into his bank account instead. He says his father had identified someone who would act as a personal assistant but the Council’s policy has prevented this.

Analysis

16. It is not fault for the Council to offer the pre-paid card as its default way of paying Direct Payments.
17. The Council has not applied a blanket policy but considers individual requests if there are sound reasons why the system would not work. So far Mr X has indicated his preference for a bank account but the Council says it has not seen evidence the pre-paid card would be unworkable for him. If Mr X presents reasons to the Council why the pre-paid card does not work for him – for example, his wish to employ a personal assistant rather than a care agency – then the Ombudsman would expect the Council to consider that in accordance with its statement that “it would consider other systems of payment if there were sound reasons why the pre-paid card would not work for someone.”
18. It is not the role of the Ombudsman to criticize the Council for the merits of a decision which it has taken properly and in the consideration of guidance.

Back to top

Final decision

19. I find no fault on the part of the Council.

Back to top

Investigator's decision on behalf of the Ombudsman