The Ombudsman's final decision:
Summary: Mrs B complained the Council unreasonably sought repayment of direct payment monies which she had used for her care and refused a meeting to discuss her concerns. The Council only undertook one annual review and did not raise any concerns about Mrs B’s spending between 2012 and 2016. That meant Mrs B had no opportunity to amend the way she managed her direct payments account. An apology to Mrs B and a recalculation of the amount to be recovered is satisfactory remedy for the injustice caused.
- The complainant, whom I shall refer to as Mrs B, complained the Council:
- unreasonably sought repayment of direct payments when she has used it to pay her husband to provide care; and
- refused to meet with her to discuss her concerns.
The Ombudsman’s role and powers
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- 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)
- 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)
How I considered this complaint
- As part of the investigation, I have:
- considered the complaint and Mrs B's comments;
- made enquiries of the Council and considered the comments and documents the Council provided;
- considered Mrs B’s comments on my draft decision; and
- considered the Council’s comments on my draft decision.
What I found
Chronology of the main events
- Mrs B began receiving a direct payment for her care in May 2012. Most of that payment is for Mrs B to employ a personal assistant.
- On 22 April 2013 the Council wrote to Mrs B to tell her about its annual audit of her direct payments account. The Council asked Mrs B to provide bank statements and receipts for any cash payments. The Council considered the bank statements Mrs B provided and wrote to her on 12 July to tell her it had completed the audit. The Council did not raise any concerns about Mrs B’s spending.
- On 27 May 2015 the Council wrote to Mrs B to tell her about an audit of direct payments. The Council asked for original bank statements, timesheets, wage slips, invoices, receipts, tax and national insurance contributions, employers and public liability insurance policy and any other paperwork for the period 20 June 2011-30 April 2015. I do not have any evidence of the Council receiving that documentation or of it completing the audit in 2015.
- The next entry in the Council’s documentation is a report on 30 June 2016, raising concerns about some of the expenditure on Mrs B’s bank statements and changes made to internet printouts of bank statements. The officer completing the review raised concerns about misuse and fraudulent statements.
- On 1 July 2016 the Council wrote to Mrs B to tell her it had selected her for a random audit. The Council told Mrs B the audit would cover 12 July 2011-30 April 2015. The Council asked Mrs B for various documents to support her spending for the period. The Council asked for the information by 22 July.
- The Council completed its audit by the end of August 2016. The Council decided Mrs B had misused part of the funds in her account and had not provided wage slips for part of the period her husband was providing overnight care to her.
- A Council social worker met with Mrs B on 19 October. During that meeting Mrs B admitted she had not managed the direct payments account well.
- On 4 November the Council spoke to Mrs B and confirmed her husband would provide 25 hours per week care. The Council said the other PA’s would provide 14 hours per week and five hours per week, making 44 hours. From 8 November the Council transferred Mrs B’s direct payment to Penderels Trust for management.
- On 12 November the Council issued an invoice to Mrs B for repayment of £53,145.25.
- Mrs B disputed the invoice on 18 November. Mrs B asked for a meeting with the officer that had agreed recovery on 19 December. Mrs B chased the Council for a response to her request for a meeting on 6 January 2017. On 20 January the Council told Mrs B it did not consider a meeting necessary.
Care and support statutory guidance
- The care and support statutory guidance (CSSG) says following a 6-month review, the local authority must then review the making of the direct payment no later than every 12 months.
- The CSSG says the outcome of the review should be written down, and a copy given to all parties. Where there are issues that require resolving, the resolution method should be agreed with all parties involved, as far as is reasonably practicable. Where appropriate, local authorities should advise people of their rights to access the local authority complaints procedure.
- The CSSG also notes that direct payments are designed to be used ‘flexibly and innovatively and there should be no unreasonable restriction placed on the use of the payment, as long as it is being used to meet eligible care and support needs.’
The Council’s direct payments policy and staff guidance
- The Council’s direct payments policy says the Council will consider allowing direct payments recipients to pay close family members living in the same household to provide support on a case-by-case basis.
- The Council’s direct payments policy says it will carry out financial audits of service user accounts and can recover money if the direct payment is misused or where it is not known how the money has been used.
- The Council’s direct payments staff guidance says following an initial review the Council must review the direct payment no later than every 12 months.
- The Council’s direct payment staff guidance says suspected misuse of direct payments money will be alerted to the relevant district or reviewing team and may require further investigation. The guidance says if the Council is satisfied the direct payment has been intentionally misused it should make a decision as to whether, and how, to recover the misspent money.
- The Council’s direct payment staff guidance says where an alert is raised regarding potential misuse of a direct payment contact should be made with the service user to undertake an exploratory conversation to decide whether any misuse has taken place and, if so, whether there was deliberate intent.
- The Council’s direct payment staff guidance goes on to say the Council needs to ensure it can evidence it has provided the service user with all the relevant information to ensure they understood their responsibilities under the direct payment agreement and what the direct payment could and could not be spent on. That includes locating a support plan which clearly identifies what the direct payment could or could not be used on.
- The Council’s direct payment staff guidance says for non-deliberate misuse the team manager must decide whether the misused amount of direct payment monies should be claimed back by the Council.
- Mrs B says the Council should not have sought repayment of £53,145.25 in direct payments when she has used that amount to pay her husband to provide care. Mrs B points to the fact the NHS has now taken over her care package and it is considerably greater than that which the Council funded. Mrs B therefore says it was unreasonable for the Council to seek to recover money which she used to provide for her care. In contrast the Council says Mrs B did not provide evidence to support the amount she said she had paid her husband to provide care. The Council also says Mrs B spent money from her direct payments account on items not covered by her support plan. I am exercising the Ombudsman’s discretion to investigate the complaint even though it concerns events which happened more than 12 months ago. That is because I am satisfied Mrs B was not aware of the Council’s concerns until 2016 and has been in regular correspondence with the Council about the matter since then.
- Having considered the documentary evidence it is clear there are two issues here. The first issue is the lack of wage slips for the care Mrs B’s husband provided between 2012 and 2016. The second is spending on items the Council does not consider meets Mrs B’s care needs. I am concerned it took the Council until 2016 to identify those issues and to explain its concerns to Mrs B. As I said in paragraphs 16 and 21 the care and support statutory guidance and the Council’s own policy makes clear it should carry out an annual review of direct payments. In this case I have found no evidence to suggest the Council carried out an annual review in 2014. Nor do I have any evidence to show the Council completed the annual review it began in 2015. The Council did complete a review in 2013. There is no evidence the Council raised any concerns with Mrs B in 2013 or at any point again until 2016. Failure to carry out annual reviews is fault. Failure to explain the Council’s concerns following the annual review in 2013 is also fault. Without any annual reviews or communication with Mrs B about concerns between 2012 and 2016 I cannot see how she could have known she was not managing her direct payments account properly. I therefore do not consider the Council gave Mrs B an opportunity to either amend her spending or to correct the situation by keeping proper records of her spending.
- I am also concerned about how the Council decided to recover the direct payments from Mrs B. As I say in paragraphs 22 and 25, the Council’s direct payments guidance makes clear the decision on whether to recover misspent direct payments is not automatic. Instead, in each case the Council has to consider whether the funds were misspent intentionally. The Council then has to decide whether it is right to recover the money. In this case I have seen no evidence the Council had a proper discussion with Mrs B about its findings. There is no evidence the Council gave Mrs B an opportunity to provide any extra evidence or to provide information to allow the Council to decide whether to recover the direct payment. Nor is there any evidence the Council gave any consideration to the circumstances in which Mrs B spent the money. There is no evidence the Council considered the impact of it not communicating any concerns to Mrs B about her spending between 2012 and 2016 before deciding to recover the money. I am particularly concerned about the Council’s decision to recover all the money paid to Mrs B’s husband as her overnight PA where Mrs B has not provided wage slips when the Council accepts Mrs B’s husband has provided 25 hours per week care throughout the period. Failure to consider properly whether to recover all of the £53,145.25 or to take into account the care the Council accepts Mrs B’s husband provided is fault.
- The Council has provided a copy of the various direct payments agreement signed by Mrs B. Those direct payments agreements make clear Mrs B must keep proper documentary records which includes wage slips. Mrs B did not do that for all the money paid to her husband as her PA. However, on the other hand the Council has accepted Mrs B’s husband provides 25 hours per week care. The point of the rules about direct payments is so the Council can ensure the amount spent is legitimately spent on the service user’s care needs. In this case the Council has not questioned whether Mrs B’s husband provided 25 hours per week overnight care support to Mrs B. The Council has also accepted it can pay Mrs B’s husband as her carer for that period. I therefore do not consider it would be right for the Council to seek to recover the entire amount paid to Mrs B’s husband between 2012 and 2016 for which there are no wage slips. I recommended the Council recover only amounts which Mrs B paid to her husband over and above the agreed 25 hours per week. I therefore recommended the Council recalculate the amount overpaid for the period 2012-2016 to reflect the care the Council accepts Mrs B’s husband has provided. The Council has agreed to that.
- There then remains the £21,768.26 the Council considers Mrs B has misused. I have considered Mrs B’s support plan and the bank statements she has provided. Based on those documents I understand why the Council has concerns about Mrs B spending money on items not included in her support plan. However, I cannot ignore the fact some of those items were included on the bank statements Mrs B provided in 2013. As I said earlier, the Council did not raise any concerns about her spending with Mrs B following the 2013 review. So, I do not consider Mrs B would have understood what she was spending money on was not suitable. As the Council also did not complete reviews in 2014 and 2015 Mrs B had no way of knowing the Council considered some of her spending unacceptable. If the Council had acted as it should have done and communicated its concerns to Mrs B in 2013, or completed reviews in 2014 and 2015 and then shared its concerns with Mrs B, she would have had an opportunity to amend the way in which she spent her direct payment. She could then have avoided some or all the recovery she now faces. In those circumstances I recommended the Council also write off the £21,768.26 it considers Mrs B misused between 2012 and 2016. The Council has agreed to that.
- Mrs B says the Council refused to meet with her to discuss her concerns about how it had calculated the amount she needed to repay. I have already explained earlier in this statement where I consider the Council at fault for how it dealt with Mrs B’s direct payments account and in how it sought to recover some of the money paid. I consider if the Council had arranged a proper meeting with Mrs B to go through the expenditure it was concerned about that may have prevented Mrs B having to go to time and trouble to pursue her complaint. In addition to the remedy recommended in paragraphs 29 and 30 I also recommended the Council apologise to Mrs B both for the failures in how it dealt with her direct payments account and for failing to consider meeting with her to explain its concerns in more detail. The Council has agreed to that.
- Within one month of my decision the Council should:
- amend its calculation of the amount to be repaid to reflect the Council’s acceptance that Mrs B’s husband provides 25 hours care per week which can be funded. Following that the Council should write to Mrs B to confirm the remaining amount to be recovered;
- write to Mrs B to confirm it is no longer intending to pursue recovery of the £21,768.26 it considers she has misused the account for; and
- apologise to Mrs B for the faults identified in this statement.
- I have completed my investigation and uphold the complaint.
Investigator's decision on behalf of the Ombudsman