Summary: Mrs D complains the Council should not recover direct payments which she says she used to pay for her mother’s care. The Ombudsman’s decision is that there is evidence of fault by the Council because it failed to clearly explain the reasons for the outstanding debt. The Council has agreed a suitable remedy.

The complaint

1. The complainant whom I shall refer to as Mrs D complains the Council is unfairly seeking to recover £5600 from her for direct payments made for her late mother, Mrs A’s care. She says that the Council owes her money for care she paid for.

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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)
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)

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How I considered this complaint

4. I have considered the complaint and the copy correspondence provided by the complainant. I have made enquiries of the Council and considered the comments and documents the Council provided as well as the Care Act 2014 (“the Act”) and relevant guidance. I have also discussed the complaint with the complainant and considered the complainant’s and the Council’s comments on my draft decision.

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What I found

5. Mrs A required care at home after she was discharged from hospital. The Council assessed Mrs A’s needs in August 2015 and provided a care and support plan. It agreed to pay a direct payment of £280 per week for her care.
6. Local authorities can pay direct payments to help people to commission their own care and support. The Council pays the direct payment into a bank account which the service user or representatives set up for that purpose. The service user is expected to pay their contribution into the same account to enable auditing.
7. The Council must be satisfied that the direct payment is being used to meet the care and support needs set out in the plan, and therefore must monitor direct payment usage to ensure effective use of public money.
8. The Council says it provided information about direct payments to Mrs D who was acting as Mrs A’s representative. This included Mrs A’s social worker explaining to Mrs D that Mrs A must open a separate bank account to receive the payments and that she must send monthly bank statements to the Council to confirm payments made and received. The Council says it provided leaflets about direct payments and referred Mrs D to Independent Lives, a company which supports people to understand and manage their direct payments.
9. Mrs A signed the direct payment agreement in October 2015. She nominated Mrs D to manage her direct payments. The agreement explains the Council requires monthly bank statements to evidence payments made for care.
10. The Council started paying the direct payments in October 2015. It wrote to Mrs D on 14 October 2015 and asked her to send monthly bank statements within 2 weeks of receipt. It also advised it would pay the full amount until it carried out a welfare benefits assessment (WBA) to assess Mrs A’s financial contribution towards the cost of her care. However, it was unable to assess Mrs A’s income and benefits to calculate her contribution despite contacting Mrs D several times.
11. The Council closed Mrs A’s direct payments in December 2015 because Mrs D failed to respond to the Council’s requests to carry out the WBA. However, the Council paid direct payments up 20 February 2016.
12. The Council wrote to Mrs D on 11 December 2015 and stated Mrs A’s capital was over the threshold, so she was liable to pay the full cost for her care. It explained it would send an invoice for the full cost of care from the start of direct payments. In February 2016 the Council sent a direct payments closure letter to Mrs D. This asked for bank statements showing the final payments made for care. The Council sent Mrs D an invoice for £4280 on 29 February 2016. This was for the period October 2015 to January 2016. The Council says Mrs D also owed £1120 for the overpayment of direct payment for 4 weeks up to 20 February 2016. However, it I have not seen evidence the Council sent an invoice for this. The Council’s copy of “remittance advice” I have seen does not state that there has been an overpayment or that it should be repaid.
13. In March 2016 Mrs D asked why the Council had stopped paying the direct payments. The Council says it called Mrs D and explained she had not responded to requests to carry out a WBA. Therefore, Mrs A was deemed full cost and responsible for payment for all her care. Mrs D asked the Council to carry out a postal WBA by sending a form to complete. The Council sent Mrs D a form but says that despite chasing a response Mrs D did not return it until mid May 2016. On 18 May, the Council assessed Mrs A’s financial contribution was £38 a week.
14. Sadly, Mrs D died in mid 2016.
15. In November 2016, Mrs D says she received an invoice for more than £3000 to repay direct payments. I do not know the exact amount or reasons for the invoice of £3000, the Council may wish to provide an explanation. Mrs D called the Council and complained about the invoice.
16. In February 2017 the Council wrote to Mrs D and stated its invoice of £579 was for the client contribution. It said this was the final sum due to the Council. It sent a letter chasing repayment of £579 in April 2017. Mrs D complained in June 2017 that it had not explained its demands for £3000 and £579. She said she did not owe any money and in fact she believed the Council owed her money for her mother’s care.
17. The Council replied to Mrs D’s complaint in June 2017. It said it had arranged a direct payment from October 2015, but had closed this on 22 January 2016 when Mrs D failed to respond to the WBA. The Council had eventually completed the financial assessment in May 2016 and assessed Mrs A’s contribution. Unfortunately, as Mrs A had died soon after this the Council had not set up direct payments from January 2016. The Council said Mrs A must pay the client contribution of £579 for the period up to January 2016. The Council deemed Mrs A was self funding from January 2016 as she had not disclosed her finances.
18. On 29 June 2017 Mrs D complained further that if the Council had requested paperwork she would have sent it. However, she acknowledged that the Council may have asked for information, but due to her caring commitments to her mother and other family circumstances she found things impossible. She did not feel the Council had helped her. She asked the Council if she could send the information required so that it could consider paying direct payments for the period up to her mother’s death. She also said the Council had not provided a breakdown of the £579 invoice or explained why it had reduced from £3000 to £579.
19. The Council responded in mid August 2017 and said it refused to review Mrs A’s direct payments. It said that this was due to the time passed and previous attempts to obtain forms and information. It said relevant departments would answer other issues she had raised.
20. Shortly after the Council responded its complaints officer emailed Mrs D and said that he did not consider the response was in line with the Council’s corporate expectations. He said he would aim to send a full response by 19 September 2017. However, the Council did not respond, and Mrs D chased the matter on 19 October 2017. The Council apologised and stated that it would look into the matter and believed it had sent a response.
21. Mrs D chased the Council again on 9 November 2017. The Council apologised again for the delay and said that it was still waiting for a response from the relevant departments. It said Mrs D could escalate her complaint to the Director level (final stage) or complain to the Ombudsman. Mrs D asked the Council to escalate her complaint to director level.
22. The Council replied on 17 November 2017. The Council upheld the direct payments element of Mrs D’s complaint. It said that it had initially assessed Mrs A as full cost which meant she needed to pay for all the care costs herself. The Council had then carried out a WBA and assessed Mrs A was not full cost therefore it sent a reduced invoice. The Council accepted it had delayed responding to her complaint and apologised for this. It did not respond regarding her request for direct payments up to the date of her mother’s death.
23. Mrs D complained further that the Council had reduced the amount outstanding but had not provided a breakdown. It had also advised her by telephone that she owed nothing. She said her mother’s circumstances had not changed as her income was benefits throughout. She believed the Council should reimburse her for Mrs A’s care that they had paid for.
24. The Council replied on 12 December 2017. It said it had reviewed the direct payments and noted that the direct payment account had not been finalised. Because the Council had not received bank statements the Council said it had to assume direct payments had not been spent on care. It said that if Mrs D sent in statements for October 2015 to the closure of the account which showed payments were spent on care it would recalculate the balance due. The Council said it had raised an invoice of £5020 for the direct payments it had paid. This was in addition to the invoice for the £579 client contribution which it said it would send. It apologised for its delay in contacting Mrs D. The Council did not respond regarding Mrs D’s request for direct payments for care up to her mother’s death.
25. In May 2018 the Council sent Mrs D a debt recovery letter regarding the direct payment balance owing of £5020. It stated this was due to “ DP closure- statements not received.” Mrs D says the stress due to this affected her mental health and her work. She complained she thought the Council had agreed that it owed her money because she was not paid for the last three months before her mother died. She asked where the Council got its figures from.
26. The Council replied in July 2018 that there were two invoices outstanding. One was for £579 which was Mrs A’s assessed contribution and the other was for £5020 which was an overpayment on the direct payment account following Mrs A’s death. It said that if Mrs D provided bank statements for October 2015 to January 2016 it may be able to recalculate the amount due. It said this was the Council’s final position.

Analysis

27. The Council was not at fault regarding its decision to stop direct payments. Mrs D did not respond to its requests to carry out a WBA. However, there was delay in stopping payments, so this led to an overpayment of £1120 from 23 January to 20 February 2016. I have not seen evidence the Council properly notified Mrs D regarding this overpayment. The remittance advice it sent in February 2016 did not constitute an invoice or explanation. It appears the Council did not mention the overpayment again until December 2017, and then it was as part of a total amount outstanding. This was fault. The Council did not explain this adequately.
28. I consider the Council did not properly notify Mrs D regarding the closure of the direct payments and the reason for this. In December 2015, its letter said that Mrs A’s capital was over the threshold. This was not correct. The reason for direct payments being stopped was Mrs D’s failure to respond regarding the WBA. I consider this was fault.
29. The Council says it sent an invoice for £4280 in February 2016 but also says it had not properly closed the account. It requested bank statements showing payments for care in February 2016 but did not send a follow up letter. It says this was due to an oversight. It only recognised this in December 2017 when it reviewed matters. I consider this delay was fault.
30. Mrs D responded regarding the WBA in May 2016. The Council assessed Mrs A’s contribution in May 2016 and advised her she had a total of £579 to pay. However, it does not appear that the Council recognised that bank statements were still required as per the agreement and that until these were received, Mrs A was liable to repay the full amount of direct payments paid. I consider this apparent failure to check the position was fault.
31. I consider there were faults in the Council’s complaint handling. The Council’s responses were unclear. It appears the Council was itself uncertain regarding the amounts outstanding and the reasons for them. It stated Mrs D owed £579 between November 2016 to June 2017 and that this was the final amount outstanding. This was the client contribution only. It then stated in December 2017 that the full amount £5600 was due but did not provide a breakdown. The Council’s total of £5600 was incorrect as the amount it was seeking was £5400.
32. The Council refused on 13 August 2017 to consider care payments Mrs D says she paid between January 2016 and June 2016 in a response the Council’s own complaint team considered was not satisfactory. In my view, the Council did not appear to adequately explain how it had considered this request particularly in view of the outstanding overpayments. The Council’s later complaint responses did not address Mrs D’s repeated requests for direct payments for care she says she paid for up to June 2016. This was fault.
33. There were significant delays by the Council in responding to complaints. The Council did not respond to Mrs D’s complaint of 29 June 2017 until 13 August 2017 and that response was not satisfactory. The Council said on 23 August that it would respond in full but failed to do so until 17 November 2017. This response also failed to consider a key element, Mrs D’s request for Council to consider paying direct payments from January 2016 to Mrs A’s death.
34. When Mrs D completed the WBA in May 2016, it appears she believed she had provided the documents and information the Council required to reinstate the direct payments. However, the Council assessed her contribution for the closed period up to 23 January 2016 and did not reinstate direct payments. The Council said in its response to my draft decision that it had advised Mrs D and other family members that it had closed the direct payments and she was now deemed responsible for the full cost of care. It has provided evidence of this and its advice to Mrs D. It does not appear Mrs D followed the advice the Council gave. I do not find fault by the Council in not reinstating direct payments from January 2016.

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Agreed action

35. Mrs D has now provided bank statements for the account. I recommend that the Council could remedy its faults by
• Reviewing the statements provided within a month of receipt and writing to Mrs D with the outcome.
• Paying £200 to Mrs D for the anxiety caused and her time and trouble due to the faults I have identified.
36. The Council has agreed to review the direct payment account even though the bank statements would not normally be acceptable evidence. I consider this is a suitable remedy.
37. The Council accepts that it should have had a system in place to follow up requests for financial information. It has introduced this. It has also updated its booklets about paying for care to advise requirements for financial information.

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Final decision

38. I find the Council was at fault and it has agreed a suitable remedy. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman