Summary: The Council failed to carry out timely reviews of Mrs X’s husband’s support plan. As a result of this, the Council did not identify sooner that Mrs X was not taking the respite which it had identified she needed. The Council has agreed to make a payment to Mrs X and take action to prevent similar failings in future.

The complaint

1. Mrs X complains about the Council’s decision to reclaim unused funds from her deceased husband Mr X’s direct payment account in 2017. She says a support plan agreed in 2015 said some funding was intended to provide respite for her, but the Council never then explained how she should use it nor reviewed the support plan as it said it would. She also says the Council never told her it would reclaim unused funds.
2. Mrs X says she has lost several thousand pounds because of the Council’s decision.

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The Ombudsman’s role and powers

3. 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)
4. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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)
7. 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

8. This complaint was originally allocated to another investigator. I have considered all the records on file, including that investigator’s notes of a telephone conversation with Mrs X, his enquiries of the Council and his analysis of the complaint. I have also considered the information the Council provided in its response to the investigator’s enquiries.
9. While Mrs X complains about her own personal injustice caused by the Council’s decisions in this case, the payments went into her husband’s direct payment account. However, I am satisfied that Mrs X is a suitable person to bring this complaint.
10. I have taken account of the Care Act 2014 and the ‘Care and support statutory guidance’ which accompanies it. The law imposes certain duties and, where the guidance sets out further expectations, we expect local authorities to follow it too.
11. I shared my draft decision with Mrs X and the Council and considered their comments on it.

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What I found

Legal background

12. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
13. Where an individual provides or intends to provide care for another adult and it appears the carer may have any needs for support, local authorities must carry out a carer’s assessment. Carers’ assessments must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
14. The law makes clear the local authority may 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 the Council will meet them. The carer’s personal budget must be an amount that enables the carer to meet their needs to continue to fulfil their caring role. It must also consider what the carer wishes to achieve in their day to day life. Part of the planning process should be to agree the manner in which the carer will use the personal budget to meet his or her needs.
15. Section 27 of the Care Act 2014 gives an expectation that local authorities should conduct a review of a care and support plan at least every 12 months. They should consider a light touch review six to eight weeks after agreeing the plan and personal budget. They should carry out the review as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. As well as the duty to keep plans under review generally, the Act puts a duty on local authorities to conduct a review if the adult or a person acting on the adult’s behalf asks for one.
16. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be an amount enough to meet the person’s care and support needs.

Overview of events

17. Mrs X’s husband, Mr X, suffered with dementia for over a decade before he passed away in September 2017.
18. In June 2015, Mr X left residential care to return home. A social worker completed a support plan and agreed a weekly personal budget of £1259. The support plan shows that just over £118 of this weekly budget was for respite “for wife as main carer”.
19. Mrs X complains she had little advice or help from the Council in finding suitable respite provision to spend this allowance on. The Council says that Mrs X had expressed that she wanted to use the money to fund a personal assistant (PA) to “provide an opportunity for her to leave her husband in the care of others while she was away from the house.” It points to email correspondence in February 2015 which shows that Mrs X had decided to employ someone she knew to provide respite care at home. The Council made a referral to a charity the following month to provide advice on how she should employ the PA and the best way for Mrs X to manage the payments.
20. In August 2015, Mrs X told a social worker that the PA had been ill and felt she could no longer continue with the role. She said she would have to find a new PA and asked if she could use the respite money to advertise for the post.
21. The following month, a social worker visited Mr and Mrs X and asked Mrs X how things were going. Mrs X advised that work to find a new carer for respite breaks was ongoing.
22. Around 16 months later, in January 2017, an NHS social worker contacted the Council to say that the situation had got much worse and the live-in carer was not coping. A social worker telephoned Mrs X who said that she was meeting with the live-in carer’s agency to address some issues and did not need social services involvement at that time. The social worker noted that Mrs X had concerns about the process for getting support, but this was mainly in relation to Occupational Therapy (OT) support which she would discuss with the OT team.
23. The next week, a hospice social worker contacted the Council because they considered Mrs X was struggling to cope and an urgent review of the care package was needed.
24. The Council carried out a formal review of Mr X’s support plan in May 2017. The notes of that review show that Mrs X had “been using the respite allowance to pay for the increase in care” she felt her husband needed because his budget was inadequate.
25. Mr X passed away in September 2017. The Council says there was around £14,000 in Mr X’s direct payment account at the time. It told us that around £10,000 of this was a ‘float’ kept in the account by agreement with the third-party management company to cover contingencies. Of the £4,000 remaining funds it originally reclaimed, it later paid back just over £2,000 when the management company produced further bills for Mr X’s care. The Council’s position is the actual surplus left in the account when Mr X died was around £1,900. While understandably local authorities often keep track of direct payment accounts to make sure large surpluses do not build up, the Council says in this case the amount was not high enough for that.
26. The Council states Mrs X knew from when the direct payments started over a decade earlier that it would reclaim any unused funds. It says this was in the terms and conditions it expects care recipients to sign. A document dated November 2005 signed by Mrs X says direct payments are subject to several conditions, including, “that you will pay back money which has not been used.” Another document dated November 2013, and signed by Mrs X, says the same. However, while the Council’s computer system has a record of a similar form created in June 2015, there is no signature on it.

Analysis

27. Mrs X first complained to the Council in early 2018. It responded at that point, but Mrs X still had concerns and made a further complaint in 2019. She then came to the Ombudsman in June 2019.
28. The law says we should only investigate late complaints if there is good reason to. While Mrs X’s complaints are late, I have decided to exercise discretion to investigate. I am satisfied enough records exist to enable me to make a robust decision.

Support with respite

29. I have considered Mrs X’s complaint about the lack of help from the Council in identifying how to spend the weekly respite payment. The evidence shows that Mrs X knew how much she could spend each week on respite, she identified a PA herself to provide respite and she was offered advice about how to employ the PA. I have seen nothing to suggest Mrs X needed any additional support to identify how to spend the respite payment.
30. While the records do not show that the Council checked if Mrs X needed support with finding a new PA when she left in August 2015, I consider it was reasonable for the Council to assume that she would contact social services if she needed any help. It is normal for someone in receipt of direct payments to arrange care and support themselves without assistance from the Council.
31. The Council has accepted that it did not complete timely Care Act reviews of Mr X’s support plan. There were no reviews between a light touch review in September 2015 and a formal review in May 2017. This was fault. If there had been no fault here, I consider the Council would have identified sooner that Mrs X was not taking the respite she needed. I consider this failing resulted in Mrs X struggling to cope and caused her significant distress for several months.

Reclaim of unused funds

32. The Council’s failure to get Mrs X’s signature confirming her understanding of the direct payment terms and conditions in June 2015 is fault. However, I am satisfied this caused Mrs X no significant injustice.
33. Despite the Council not making sure Mrs X signed that form, I cannot uphold her complaint about it taking back the money in the direct payment account. The principle of reclaiming funds from direct payment accounts is clearly established both in law and the statutory guidance. In particular, this says any leftover funds remaining in an account after the recipient has passed away do not form part of their estate.
34. While the Council had the right to reclaim the unused funds, the Ombudsman would expect it to act sensitively and professionally in doing so from a recently bereaved widow. However, in this case a third-party management company ran Mr X’s direct payment account and the evidence I have seen shows the main contact about reclaiming funds was between it and the Council. There is no evidence the Council acted inappropriately towards Mrs X.
35. I have taken into account the unsigned June 2015 terms and conditions form. However, the other evidence available means on balance I am satisfied the Council told Mrs X of its right and intent to reclaim any unused funds. The Council’s decision to do so was not fault.

Agreed action

36. Within four weeks, the Council will pay Mrs X £500 for the injustice she suffered as a result of the Council’s delay reviewing Mr X’s support plan.
37. The Council says it is determined to offer an annual review to all people in receipt of long-term support and has put a plan in place that aims to achieve this. The Council will provide us with a copy of its action plan within eight weeks of this decision.

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Final decision

38. I have completed my investigation and uphold Mrs X’s complaint. There was fault by the Council which caused injustice to Mrs X. The action the Council has agreed to take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman