Leeds City Council (18 014 760)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 21 Jun 2019

The Ombudsman's final decision:

Summary: Ms B says the Council failed to give information about a financial client contribution for adult social care; she didn’t pay and there is an outstanding debt. I find the debt is rightly due. There was a delay in the Council auditing Ms B’s social care account. The Council wrongly sent an invoice to her father and disclosed her personal data to him. There have been many errors in communication. This has caused shock, frustration, stress and time trying to sort matters. The Council has taken some steps to remedy matters, it has now agreed to also deduct £250 from the outstanding invoice.

The complaint

  1. The complainant, who I will call Ms B, says the Council failed to provide adequate financial information in 2016 about care charges. Ms B says she was asked to sign to say the visit took place, she was not left with any paperwork and there was no follow-up paperwork. Ms B assumed she did not have to pay anything towards her care. The Council failed to regularly audit her direct payment account for two years. Following an audit in 2018 the Council said she owes £807 for client contribution she should have paid in 2016-2017.
  2. The Council sent Ms B’s father an invoice for £9,000, which he did not know what it was for. Ms B’s father telephoned the Council who realised it sent an invoice intended for Ms B to her father in error. The Council disclosed information about Ms B’s financial assessment and alleged debt to her father.
  3. The Council sent two e-mails to Ms B addressed to her surname and sent an invoice with incorrect dates. Even when Ms B brought the incorrect invoice to the Council’s attention, it did not recognise the error.
  4. Ms B says the Council’s actions have caused her stress, anxiety and frustration. She has a debt hanging over her which she does not believe she owes and was a shock to find out about so long after the debt supposedly occurred. Ms B no longer trusts the Council and has stopped receiving its care services. It has affected her relationship with her father, who also felt stressed by receiving an incorrect invoice and having a telephone conversation with the Council in which his daughter’s details were disclosed.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I considered information provided by Ms B and the Council. I considered the Care Act 2014 and associated guidance. I shared a draft of this statement with Ms B and the Council and considered the Council’s response; Ms B did not respond.

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What I found

Care support and direct payments

  1. When a council is aware of someone in its area who may need adult care services it should complete an assessment of their needs; any eligible care needs should be detailed in a support plan. The support plan should include a personal budget, which is the amount available to meet your eligible care needs. The Council should complete a financial assessment to determine what, if anything, the person can contribute towards the cost of their care. The Council should review care needs, and financial, assessments at least annually.
  2. Your personal budget can be managed by the council, by a third party, or by yourself. If you choose to manage your own personal budget, you will receive direct payments to arrange and pay for your care. The direct payments must be paid into a dedicated bank account, and only used to meet the needs described in your support plan. The Council should audit your direct payment bank account at least annually. The Council can ask for any surplus, or mismanaged amounts, to be repaid.

What happened

  1. In August 2015 Ms B started to receive care support from the Council following a stay in hospital. Ms B received direct payments so she could arrange her own care. The Council assessed Ms B did not have to contribute towards the cost of her care.
  2. The Council’s direct payment agreement says it will complete an initial audit after three months and then annually. The Council wrote to Ms B after three months, but she did not return the questionnaire. The Council classed Ms B as ‘low risk’ as she was not contributing financially. The Council did not complete an audit.
  3. In 2016 the Council completed a financial review. Ms B says the council officer was flustered and rushed, they asked her to sign to confirm the assessment had taken place but did not leave her with a copy or send any further information following the assessment. Ms B says she assumed she still did not have to contribute towards her care. The document which Ms B signed shows her assessed contribution as £21.83 per week, and that she understands it is payable from either the date she started receiving care services or from the date of the financial review.
  4. The document Ms B signed also states she has received a notification of contribution letter. The Council cannot provide a copy of the letter it gave Ms B as says the officer completed it by hand and gave it to Ms B on the day. The Council has provided a template of the letter, this explains the customer must pay their contribution into their direct payment account.
  5. In 2017 the Council completed a financial review which increased Ms B’s client contribution to £22.70 per week. Ms B says this review was very different to that in 2016. The council officer was thorough and clear on what she had to pay, and how she should pay it. The officer left Ms B with paperwork confirming everything, and she set up the payment accordingly.
  6. Towards the end of 2017 Ms B realised the Council had never audited her direct payment bank account, so contacted the Council. The Council completed the audit and wrote to Ms B at the start of 2018 with the results. There was a large amount of unused funds in the account, and Ms B had not paid in enough towards her assessed client contribution.
  7. The Council sent Ms B’s father (Mr C) an invoice for £9000 for the recovery of care fees. Mr C did not know what this was for, so he telephoned the Council. At first the Council was confused, then realised it had sent the invoice addressed to Mr C rather than to Ms B. The Council told Mr C details of what the invoice was for in relation to unused spending on Ms B’s direct payment account. The Council apologised for its errors and issued Mr C a credit note, to cancel the request to him for payment.
  8. The Council has an information governance team who deal with breaches of personal data. The Council acted correctly to refer the breach of Ms B’s data (disclosing information about her alleged debt to Mr C) to that team. The Council does not consider the incident was a ‘high risk breach’. It disclosed limited information about Ms B’s financial information, Mr C was already aware Ms B was involved with adult social care. The Council realised the error took place because of the way in which it had recorded Ms B and Mr C’s names on its records, it amended this to prevent future breaches. The Council apologised to Ms B and Mr C for the distress it caused.
  9. The Council sent Ms B an invoice for the dates 3.10.19 – 29.5.17. When Ms B raised there was an error on the invoice’s dates the Council could not find mistakes with it. Ms B has received correspondence with spelling errors, and some addressed simply to her surname.
  10. In February 2018 Ms B ended her direct payments and care package because her health and abilities have improved, she has good family support, and is on the right medication. Though affordability was also a factor.
  11. Ms B has repaid the Council the surplus money that was in her direct payment account. The Council says she owes £787.50 for underpayment of client contribution, and £19.50 for unaccounted withdrawals. Ms B’s total debt is £807.00.

Was there fault causing injustice?

2016 financial assessment, audits and client contribution debt

  1. Ms B says she was only asked to sign to say the assessment in 2016 had taken place. Ms B says the council officer didn’t explain any contribution, she was not left with a copy of the assessment, and there was no follow up.
  2. I recognise that following the financial assessment in 2017 Ms B promptly paid her client contribution, which shows she was not trying to avoid paying. However, the document Ms B signed in 2016 says she understands the assessed contribution of £21.83 is effective from the date of the financial review. It also says Ms B received a notification of contribution letter. I must rely on the available evidence. Perhaps it is a lesson to read something fully before signing, regardless of anything the other party might tell you.
  3. The Council failed to audit Ms B’s direct payment account in accordance with its procedures, with its agreement with her, and with the law. Direct payments started in August 2015 and no audit started until October 2017, over two years later. This resulted in the Council not realising Ms B had not paid her client contribution between 2016 and 2017. The Council could have picked up on this sooner and it would not then have come as a shock to Ms B in 2018. However, Ms B’s care needs were not affected by the lack of funds in her direct payment account (because of her non-payment), because she spent less than her personal budget and had a surplus in the account.
  4. The Council explains Ms B was classed as low risk as she was not contributing financially, and any cases marked as high risk had audits prioritised. My view is that when someone first starts to receive direct payments it is a big change, so it is important to give clear information and audit regularly. Regardless of whether someone is contributing financially, they could be mismanaging their account due to a lack of understanding on what they can use it for. The earlier such issues are picked up on the better, as they are not then allowed to continue for a long period, and someone receive a large bill.
  5. The Council is now up to date with its direct payment audits, and its team is fully staffed. This should prevent the risk of future problems.
  6. There is a lack of joined up working within the Council, the financial assessment officers were solely there to carry out the assessment and not consider the bigger picture. Had they done so, the assessment in 2017 could have identified Ms B was not making her client contribution at that time. This was an issue for the audit to pick up on, yet the Council had a backlog and not enough staff, so were failing to complete audits. Collaborative working between departments can be very useful and would have been in this case. In most cases the service user would probably recognise there were insufficient funds in the direct payment account, but not in this case because Ms B was not making use of her full personal budget.
  7. The Council is making improvements in this area. It has developed a report so any changes to a customer’s assessed financial contribution is notified to the direct payment team who can decide if an earlier audit is needed.
  8. Ms B believes the Council should waive the outstanding debt of £807.00 as says she was not told about the contribution. The evidence shows Ms B signed to confirm her understanding of the contribution, so there is no reason for the Ombudsman to recommend the Council should waive Ms B’s client contribution. There is no dispute over the accuracy of the financial assessment, so it was an affordable sum that Ms B should have been contributing. Ms B has benefited by having that sum in her personal account rather than in the direct payment account. The Council says Ms B can pay the debt in instalments; that is a reasonable and proportionate response to account for the Council’s delay in auditing the account and not discovering the error sooner.

Data breaches and communication errors

  1. The Council sent a large invoice to Mr C which came as a shock. When Mr C called to challenge it the Council breached Ms B’s personal data by giving out information about her financial situation with the Council. Ms B says this was shocking and stressful for both her and Mr C. The Council has apologised for these errors and taken steps to improve practice and procedures.
  2. The Council has sent correspondence to Ms B with errors such as “hear Ms B” instead of “Dear Ms B”, incorrect dates on an invoice, and addressing Ms B by her surname. Ms B found the latter insulting and disrespectful. The consistent errors throughout Ms B’s contact with the Council has resulted in a lack of trust, and she says is one of the reasons she decided to no longer have a care package.
  3. The Council apologised for addressing Ms B by her surname and raised it with the individual officer’s manager to deal with.

The Council’s offer

  1. The Council recognised fault in this case. It has apologised, amended procedures including peer checking documents before sending out, highlighted errors to relevant managers and offered £50 to Ms B to recognise its delay in auditing.

Agreed action

  1. The Council has acknowledged the impact on Ms B by apologising and offering a payment for the delayed audit. It has taken steps to improve practices. I commend the steps taken to date but find a higher payment to Ms B is warranted to acknowledge the shock, frustration, time and trouble she has been put to because of the Council’s faults. To recognise the impact on Ms B and prevent future failings, the Council will:
      1. Pay £250.00 to Ms B, this can be offset from the outstanding debt so will reduce it to £557 which can be paid by agreed instalments. The Council should issue a revised invoice within the next month.
  2. The Council should provide evidence of its compliance to the Ombudsman.

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Final decision

  1. I have completed my investigation on the basis the agreed action, and the actions already taken by the Council, are enough to acknowledge the impact on Ms B in this case.

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Investigator's decision on behalf of the Ombudsman

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