Summary: Mr X says there was fault in the way the Council managed his daughter’s direct payments account. The Ombudsman finds there was no fault in the Council’s decision to recoup an overpayment. However, the Council has delayed in completing an annual Care Act review for Mr X’s daughter. The Council has agreed to our recommendations to remedy the injustice caused.

The complaint

1. Mr X complains about the Council’s handling of his daughter’s (Miss Y) direct payments. He says the Council failed to identify it had made an overpayment and is seeking to recoup this payment from Miss Y. Mr X also complains his daughter’s personal contribution has increased from £0 to £12.41 per week and that he and his wife have not had any respite care. He says they have been put to unnecessary stress because of the Council’s actions.

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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 considered Mr X’s complaint and the documents he provided. I made enquiries of the Council and considered its response and the documents it provided.
5. I shared my draft decision with Mr X and the Council and I invited them to comment on it.

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What I found

6. The Council has a duty under the Care Act 2014 to provide a care and support plan for a person who has eligible social care needs. It 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.
7. Section 27 of the Care Act 2014 sets an expectation that councils should conduct a review of the care and support plan at least every 12 months.
8. The Care and support statutory guidance says councils must involve the person, their carer and any other individuals the person may want involved in a review of their care and support plan, and take all reasonable steps to agree any changes.
9. The guidance also stresses that the review should be proportionate to the needs to be met. Periodic reviews and reviews in general must not be used to arbitrarily reduce a care and support package. Such behaviour would be unlawful under the Act as the personal budget must always be an amount appropriate to meet the person’s needs. Any reduction to a personal budget should be a result of a change in need or circumstance.
10. People can choose to have direct payments from councils to help to cover eligible care costs. Direct payments should give a person independence, choice and control by letting them arrange their own care and support to meet eligible needs.
11. Care and support plans must explain which care needs could be met by direct payments.
12. Councils must check people are using direct payments correctly. They must review them after the first six months and then every 12 months. Reviews should check people are comfortable with the arrangements and understand how to use them. Councils usually combine direct payments and care plan reviews.
13. The Council’s direct payments agreement says:

“We may deduct money from your Prepaid Card account, or you may be asked to repay some or all of the Direct Payment money to us if:

• you have not used your Direct Payment to meet your assessed eligible needs and/or agreed outcomes as set out in your care and support plan;
• you have not used your Direct Payment because of a temporary change in circumstances (e.g. hospital or short-term respite or rehabilitation;
• your Direct Payment has been overpaid or paid in error;
• there is a surplus in your Prepaid Card Account which has been accrued above the agreed amount;
• you fail to meet any terms of the Direct Payment Agreement, or meet any condition which the Council and Partners have properly imposed in agreed letters;
• your Direct payment is terminated.”

14. The Council’s guidance also says that “The weekly amount may go up or down if there is a change in your assessed eligible care needs. If it does we will write and tell you”.
15. A council must carry out a carer’s assessment where it appears a carer may have needs for support. The assessment must include an assessment of the carer’s ability and willingness to continue in the caring role, the outcomes the carer wishes to achieve in daily life and whether support could contribute to achieving those outcomes. Providing care includes providing practical and/or emotional support. (Care Act 2014, section 10)
16. The Care Act 2014 makes clear the local authority can meet the carer’s needs by providing a service directly to the adult needing care. In these cases, the carer must still receive a support plan which covers their needs and how they will be met. (Care Act 2014, section 25)

What happened in this case

17. Miss Y has learning difficulties. She lives at home with her elderly parents who provide day to day support.
18. On 6 February 2018, the Council ended Miss Y’s direct payments package with an end date of 2 July 2017. The payments included £16.00 per week for mileage, £82.96 per week for a personal assistant and £33.20 per week for day opportunities. The Council explained the package was ended to rectify an error that was made in the service provision in July 2017.
19. The Council requested that the service provision be changed back, and an adjustment would be made to what should have been paid into the account.
20. In February 2018, the Council identified duplicate payments went into Miss Y’s account. This resulted in an overpayment of £3,832.38 from 3 July 2017 to 6 February 2018. However, the Council failed to raise an invoice to Miss Y at the time and the overpayment was not reclaimed.
21. On 22 February 2018, the Council set up a new direct payments package for Miss Y and backdated it to 3 July 2017. The payments included £82.96 per week for a personal assistant and £32.00 for day opportunities. This generated a backdated payment of £3,942.26 from 3 July to 2017 to 17 March 2018.
22. On 21 June 2018, the Council amended the direct payments package from £32.00 for day opportunities to £33.60 and backdated it to 3 July 2017.
23. In July 2018 Mr X completed a financial questionnaire on behalf of Miss Y. The Council wrote to Mr X and said based on the information provided Miss Y was required to make a personal contribution of £12.41 per week towards her package with effect from 5 August 2018. The Council attached a copy of the financial assessment that showed how the contribution had been calculated.
24. In November 2018, the Council visited Miss Y and Mr and Mrs X at their home and completed an assessment of Miss Y’s needs. The officer discussed with Mr and Mrs X their support needs as carers for Miss Y. It is noted in the assessment that Mr and Mrs X stated they did not require any additional support and declined respite for Miss Y. Mr X said he would contact the Council if they were no longer able to care for Miss Y.
25. The Council carried out an audit of Miss Y’s direct payments account in December 2018 and asked Mr X to complete the necessary paperwork. The Council identified Miss Y’s expenditure was above what she should be able to afford. The Council established the reason for this was because the invoice for the overpayment of £3,832.38 had not been reclaimed. The Council wrote to Mr X about this in January 2019.
26. Mr X complained to the Council. He said the overpayment was an administrative fault by the Council and therefore the Council should pay for the error. Mr X also complained that the Council had not increased the rate of pay for Miss Y’s personal assistant for nine years. He said that Miss Y’s personal assistant had no help towards costs of taking Miss Y to activities.
27. The Council responded to Mr X’s complaint and explained how the overpayment had occurred. The Council referred Mr X to its direct payments terms and conditions which stated that it was entitled to reclaim overpayments. The Council also clarified that direct payments should be spent on the assessed needs and outcomes agreed in Miss Y’s support plan. It said that money spent on minor adaptations was not included in the support plan and therefore direct payments should not have been spent on decorating Miss Y’s bedroom.
28. The Council said it discussed the use of money for activities during a home visit in June 2018 when it was established that activity money was not being used to address an assessed eligible need. It said a personal assistant could support Miss Y to access social activities, but they remained responsible for their own admission fees. The Council explained that if the personal assistant used their own transport to support Miss Y to attend activities it was Miss Y responsibility to pay any mileage cost. It also explained that Miss Y held a companion bus pass that enabled her to take a carer free of charge on public transport.

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Analysis

29. I have found no evidence of fault in the Council’s decision to reclaim the overpayment. It has explained its decision in line with its direct payments agreement. It has also explained Miss Y should only be using direct payments for assessed needs and in doing so the extra monies would not have been spent. Some of the payments were used to pay for some repair and decorative works to Miss Y’s bedroom and Miss Y’s personal assistant was being paid slightly above the agreed hourly rate.
30. Mr X says he and his wife have not had any respite care. The Council has provided me with assessments and reviews dating back to 2013 which shows it asked Mr and Mrs X after each assessment of Miss Y whether they needed any additional support, include respite care, but the offer was always declined. The evidence also shows Mr and Mrs X declined a separate carer’s assessment after Miss Y’s assessment in November 2018. Therefore, I do not find the Council to be at fault in the way it dealt with the issue of respite care for Mr and Mrs X.
31. Miss Y’s current assessment was completed in November 2018 and there has been a delay in completing an annual review. This is fault. Miss Y has not yet had her needs assessed to see if she has any eligible unmet needs and Mr and Mrs X have missed an opportunity to discuss any change in their circumstances.
32. The Council’s response says it increased Miss Y’s personal contribution from £0 to £12.41 because there had been an increase in her income. The Council wrote to Mr X about this, but I find the letter and payment breakdown to be vague. It does not explain in detail the change in Miss Y’s circumstances and income which resulted in the increase. Mr X says he still has not received a clear explanation. This is fault and it has caused Mr X frustration and uncertainty about how the Council has calculated Miss Y’s personal contribution.
33. The Council has clarified its complaint response is incorrect as it implied there were two payments for day opportunities made at the same time. However, the Council was initially paying £32.00 and this changed to £33.20. The Council has agreed to apologise to Mr X for the error in its complaint response. I am satisfied with this and find no further fault by the Council regarding this payment.

Agreed action

34. To remedy the injustice caused by fault, by 28 October 2020 the Council has agreed to:

• Apologise to Mr and Mrs X for its delay in carrying out an annual assessment of needs for Miss Y and therefore delaying them an opportunity to discuss any change in their circumstances.
• Write to Mr X and clearly explain why Miss Y’s personal contribution has increased from £0 to £12.41 per week.

35. By 25 November 2020:

• Carry out an annual assessment of needs for Miss Y and update her care and support plan. This should set out needs being met by Mr and Mrs X as unpaid carers and Miss Y’s eligible unmet needs.
• Carry out a carer’s assessment for Mr and Mrs X and devise a carer’s support plan setting out how their needs will be met.

36. Provide evidence to the Ombudsman the actions set out above have been taken.

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Final decision

37. I have found fault by the Council, causing an injustice to Mr and Mrs X and Miss Y. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman