Summary: Ms X complains the Council has failed to deal properly with the request to repay funds from her late mother’s direct payment account. There is no evidence of fault by the Council over its request.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains the Council has failed to deal properly with the request to repay funds from her late mother’s direct payment account.

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

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How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Ms X;
• discussed the complaint with Ms X;
• considered the documents the Council has provided; and
• shared a draft of this statement with Ms X and the Council, and invited comments for me to consider before making my final decision.

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What I found

5. Before moving to a care home in October 2019, Ms X’s mother lived at home with the help of direct payments from the Council to employ Personal Assistants to meet her care needs. Her weekly personal budget was £203.25. The Council assessed her mother as being able to contribute £152.87 from her weekly income. The Council made up the difference by paying £50.38 a week into her direct payment account. Ms X’s mother actually paid £156 a week into the direct payment account (i.e. an overpayment of £3.13).
6. After Ms X’s mother died it asked her executors (Ms X and her bother) to repay £7,420.82 from the direct payment account.
7. When Ms X questioned this amount, the Council said her mother received care until 31 October 2018, when the final balance on her direct payment account was £8,115.18. It said her mother had overpaid by £313 for 172 weeks (£538.36) so her estate could keep this along with £156 she paid into the account on 31 October. It said the remaining £7,420.82 needed paying back to the Council as the agreement her mother had signed said:
• “I agree that the monies paid to me by [the Council] under the terms of this agreement and held in the account, …, remain the property of [the Council]. In the event of my death, [the Council] will carefully consider what contractual responsibilities I have when determining the balance to be repaid”.
8. The Council noted the cost of her mother’s care had exceeded her assessed charge so her “contribution had been spent”.
9. Ms X noted the Council’s request was based on the assumption that any funds remaining in the account needed to be repaid. She referred to the clause in her mother’s contract (see paragraph 7 above), and asked the Council to explain what “careful consideration” it had given to the matter. She asked why the Council had not taken account of the fact her mother had paid significantly more into the direct payment account than the Council (£152.87 v £50.38 a week). On that basis, she said the estate should keep roughly three quarters of the residue.
10. When the Council replied it said:
• Ms X had the opportunity to tell the payroll agency to issue a P45 and pay final wages;
• the funds in the direct payment account had covered these costs;
• when wages are allocated, “the first part of this expenditure is allocated to the contribution. Where spending is higher than the contribution amount, the direct payment funds are used to cover the difference”;
• her mother had spent £178.25 a week on wages, so her contribution had been used plus some of the direct payments.

Is there evidence of fault by the Council which caused injustice?

11. I cannot find any evidence of fault by the Council in asking for £7,420.82 from the direct payment account. The Council has worked out how much the estate can keep, based on the money Ms X’s mother overpaid. It is right to point out that as Ms X’s mother could afford to contribute £152.87 a week, her estate would only be entitled to a further refund if the cost of her care had been less than that. But it wasn’t. The Council had to make up the difference between the assessed charge and the full cost of the care. As this came to less than £50.38 a week, the Council is entitled to the remaining surplus. The Council has explained why it understood there were no further costs from employing Personal Assistants to come from the direct payment account.

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Final decision

12. I have completed my investigation as there is no evidence of fault by the Council over its request to repay money from the direct payment account.

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Investigator's decision on behalf of the Ombudsman