Summary: The Council failed to follow its policy when recouping an overpayment of direct payments from Mrs X’s account by failing to notify her of the amount it would recoup and when. This is fault. The Council has agreed to make service improvements and to provide Mrs X with a payment of £150 and an apology for failing to adequately address her concerns raised in her complaints.

The complaint

1. The complainant, Mrs X, receives direct payments for her son, Mr Y, who has severe physical and learning disabilities. Mrs X complains the Council failed to advise her of a reduction in direct payments and it failed to provide her with a payment for respite in 2017.

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 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, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

4. I considered Mrs X’s complaint and discussed it with her on the telephone.
5. I considered the information provided by the Council.
6. Mrs X and the Council were given the opportunity to comment on a draft of this decision. I considered Mrs X’s comments. The Council agreed with my draft decision.

Back to top

What I found

7. Councils should assess the needs of anyone who appears to need care and support. They must write a care and support plan that explains how to meet the person’s eligible care needs. The care and support plan may include a personal budget. This is the money the council says it will cost to cover the person’s eligible needs.
8. People can choose to have direct payments from councils to help to cover eligible care costs. Direct payments should give them independence, choice and control by letting people arrange their own care and support to meet eligible needs.
9. Care and support plans must explain which care needs could be met by direct payments.
10. Councils must provide people with relevant and timely information about direct payments so they can choose whether to use them. Councils should support the person to use and manage their direct payments properly. The person has to send the council proof of what they are spending payments on.
11. Councils must check people are using direct payments correctly. They must review them after the first six months and then every twelve months. Reviews should check people are comfortable with the arrangements and understand how to use them. Councils usually combine direct payment and care plan reviews.
12. The Council’s guidance on direct payments says:

The Council will ask the recipient to repay some or all of the Direct Payments in the following circumstances;

• The money has not been used as agreed in the plan

• There has been an overpayment

• Failure to provide the required records when requested

• There are more funds in the account than needed e.g. a surplus of greater than 10 weeks of direct payments monies.

13. The Council’s guidance also says that “following the review the amount of direct payments could increase or decrease if there has been a change in the person's eligible needs, a change in circumstances or as a result of changes to the Council policy. If there is a reduction in the direct payments, the Council will give four weeks written notice”.

What happened

14. Mrs X’s son, Mr Y, has severe physical and learning disabilities. He lives at home with a package of care paid for by the Council via direct payments which Mrs X manages for him.
15. On 16 January 2017, the Council reviewed the direct payment arrangement and found Mrs X was only spending £95 of her weekly £361.69 direct payment to pay personal assistants for Mr Y. The payments had accumulated in the account and the Council says it advised Mrs X in the review meeting that the overpayment would be recouped at some point.
16. The Council reduced the direct payment amount in April 2017 and it calculated the account had been overpaid by £2118.39 over a 6 month period.
17. The Council recouped the £2118.39 in April 2017 causing a deficit in the direct payment account. A respite payment of £1202.48 was paid into the account at the same time. The account remained in deficit by £915.91.
18. Mr Y required the respite payment to pay for 2 personal assistants to accompany him on holiday. Mrs X paid for 2 personal assistants using her own money.
19. In August 2017, Mrs X complained to the Council about the reduction in direct payments. Mrs X said that although the circumstances around the change in amounts were explained to her, she felt she should have been told in advance that changes to the direct payments were going to occur. Mrs X requested a breakdown of the payments and the deductions. She also requested to be notified in advance of any future changes to the direct payments.
20. The Council responded to her complaint on 4 December 2017. It apologised for the delay in responding to her complaint and said the direct payment was correct and “the reduction of funds in May 2017 was due to the system ‘clawing back’ and adjusting for overpayments that been made between 31 October 2016 to 14 April 2017, because the payments should have reduced on the 31 October 2016”.
21. The Council also said that when she contacted the direct payments team in May 2017, she was advised that if overpayments had been made then the payment would be taken off a future invoice. The Council confirmed the payments now being made were correct and would continue on a 4 weekly basis. The Council did not provide any figures or a breakdown to explain how much had been deducted.
22. On 29 January 2018, Mrs X submitted a further complaint and highlighted that she remained concerned about the Council reducing the direct payment in May 2017 without any warning and that she had not received the respite payment for Mr Y for April 2017-March 2018.
23. The Council acknowledged Mrs X’s complaint on 19 February 2018 and advised her complaint had been referred to the social care and direct payment team for further review. It said it would contact her again within 20 working days.
24. The Council contacted Mrs X on 23 February 2018 and informed her there would be a delay in providing her with a response to her complaint.
25. The Council contacted Mrs X again on 25 April 2018 and apologised for the delay in responding to her complaint. It advised her she could contact the Ombudsman if she wished.
26. The Council sent its final complaint response to Mrs X on 30 April 2018. It said the correct direct payments had been made into the account and the complaint was considered closed. There was no reference made to the amount deducted nor was a breakdown given.

Back to top

Analysis

27. The Council reduced the direct payments for Mr Y following a change in his eligible needs. The Council’s policy says that if there is a reduction in payments, it will give four weeks written notice. I have seen no evidence the Council provided Mrs X four weeks written notice of the reduced direct payments. This is fault.
28. The Council sought repayment of all the monies overpaid for personal assistants. It is not at fault for doing so. Councils have a duty to ensure that direct payment monies are used for the purposes set out in a person’s care and support plan. If, for any reason this does not happen, the Council has a duty to recover such monies which were not used for the purpose it was given.
29. However, the Council has not provided me with any evidence it wrote to Mrs X to advise her of the amount it would recoup and when. This is fault. I have seen no evidence the Council offered to recoup the amount in instalments, instead it recouped the entire amount in one payment and without notice of when it would recoup the amount. The Council did pay the respite payment in April 2017 but due to the deficit in the account, Mrs X did not have enough money to pay for 2 carers to accompany Mr Y on holiday so she paid for the carers herself.
30. In its complaint responses to Mrs X, the Council again failed to provide her with the amount it had recouped and the amount the direct payments had reduced to. She repeatedly asked for a breakdown of the amounts so she could understand what had happened. The Council’s complaint responses were vague and repeated the amount recouped was correct without advising her of what the amount was. The Council’s failure to inform Mrs X of this information resulted in confusion, frustration and time and trouble in contacting the Council and requesting an explanation over a 17 month period. I consider the Council’s failure to appropriately respond to Mrs X’s concerns in its complaint responses is also fault.

Agreed action

31. The Council failed to follow its policy of giving four weeks written notice of a reduction in direct payments. The Council has agreed that within 3 months of my final decision, it will take steps to ensure recipients of direct payments are advised in writing of any reductions in accordance with its policy and are also advised of any monies it intends to recoup and when.
32. The Council’s complaint responses were vague and failed to adequately address Mrs X’s specific concerns. The Council has agreed that within 3 months of my final decision, it will take steps to improve the quality of its replies to complaints.
33. I do not consider Mrs X would have had reason to complain if the Council had followed its policy and advised Mrs X in a timely manner of the reduction in direct payments and explained to her that the respite payment was made but due to the account being in deficit due to recoupment of the overpayment, the direct payment account remained in deficit after the respite payment was made.
34. To remedy the frustration caused and the unnecessary time and trouble spent on pursuing this complaint, the Council has agreed that within four weeks of my final decision, it will pay Mrs X £150 and apologise for failing to adequately address her concerns raised in her complaints.

Back to top

Final decision

35. There is fault by the Council and it has agreed to the recommended service improvements and to remedy the injustice caused to Mrs X. Therefore, I have completed my investigation and closed this complaint.

Back to top

Investigator's decision on behalf of the Ombudsman