Trafford Council (19 005 333)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 18 Nov 2020

The Ombudsman's final decision:

Summary: Mrs X complains about the Council’s decision that she has misspent a further £19,472 of her son’s direct payments and says it failed to take account of the evidence she has provided. The Council has agreed to correct some misatkes in its figures, which will reduce the money it is claiming to £18,160.53. However, it was not at fault over deciding Mrs X misspent her son’s direct payments.

The complaint

  1. The complainant, whom I shall refer to as Mrs X, complains about the Council’s decision that she has misspent a further £19,472 of her son’s direct payments and says it failed to take account of the evidence she has provided.

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What I have investigated

  1. I have investigated the Council’s handling of the decision that Mrs X has misspent a further £19,472.

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

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How I considered this complaint

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

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What I found

What happened

  1. Mrs X’s son has autism. He used to live in supported living accommodation in another area. When this closed down in 2012, he moved in with his mother. He received direct payments to pay for his care, which Mrs X managed for him between September 2012 and February 2015. The personal budget agreement Mrs X signed in August 2012 says:
    • In the event of an overpayment or the misuse of your personal budget, you will return the overpayment within 14 days of the request in writing;
    • The personal budget is to buy the services that you are assessed for which are detailed in your individual care/support plan. This plan is flexible; you should contact your care manager/care co-ordinator, support broker if you wish to change anything;
    • The support that you purchase can be as innovative and creative as possible;
    • You must ensure that your personal budget is spent on activities or support that meets your social care needs;
    • You are required to provide information detailing how your personal budget has been spent, when requested by Trafford Council. You will need to keep basic records e.g. bank statements detailing what the money was spent on. This will help your and your care co-ordinator at your review;
    • A care manager/care co-ordinator/review officer will carry out a statutory review of your community care assessment and personal budget payment at least once a year. This will help you look back over the year at what you have achieved and if your personal budget will remain the same based on your needs.
  2. Mrs X says the bank misadvised her about the type of bank account to use to manage her son’s direct payments, resulting in her opening a savings account in her name as her son does not have the capacity to manage his own finances.
  3. The Council says it first audited Mrs X’s use of her son’s direct payments (for the period 1 September 2012 to 28 March 2013) on 28 March 2013. The Council says it identified “minor issues” which were “all fully resolved via correspondence with” her.
  4. Nevertheless, the Council wrote to Mrs X on 28 May saying it would allow spending on social inclusion, such as gym membership, train tickets, playing snooker and a laptop. It said she needed to contact Mr Y’s Support Broker to amend his care and support plan to incorporate these items as soon as possible. However, it said it would not allow spending on: a computer; television; clothing; car hire; bar bill; bookcase/shoe rack; electric toothbrush; DVDs; games; food/drink; docking station and charger; hotel accommodation; or cash withdrawals. It said she would have to repay £2,584.24 but would accept this in instalments. It said she must not transfer funds from her account but needed to get help from her Support Broker in setting up a separate account for her son’s personal budget.
  5. Mrs X says the bank would not let her open a current account to manage her son’s direct payments as she already had a current account with the bank for manging his day-to-day expenses.
  6. The Council cannot say when it next did an audit. But for the period 1 April 2014 to 31 March 2015 it says it raised concerns about the transfer of money from the direct payment account to other accounts in Mrs X’s name. It says she did not provide evidence for many transactions made from the direct payment account.
  7. The Council cannot say when it did the audit for the period from 1 April 2014 to 31 March 2015. It says it had the same concerns as the previous year but “mainly resolved” the issues as it allowed some spending retrospectively although some spending remained unevidenced.
  8. In 2016 the Council asked Mrs X to repay £1,742.70 in misspent direct payments, including the money spent on a bed. Mrs X complained to the Ombudsman about this decision. In February 2017 we found no fault with the Council over its decision.
  9. The Council says it audited Mrs X’s use of her son’s direct payments for the period between 3 January and 17 November 2015 on 29 June 2017. It says it identified many concerns including:
    • many payments to care providers without documentary evidence;
    • many transfers to other accounts which were not verified and for which there was no documentary evidence.
  10. The Council suspended Mr Y’s direct payments between 22 February and 19 October 2015. It reinstated them after appointing an accountant to administer them. It says it made numerous requests to Mrs X to provide the missing documentation but she failed to do so.
  11. The Council’s Counter Fraud Team investigated Mrs X’s use of her son’s direct payments. It got copies of the bank statements for four accounts in Mrs X’s name. Of the £93,417.33 the Council had paid in direct payments, it identified £73,705.98 which had been spent meeting Mr Y’s care needs:
    • £52,011.53 on three care agencies (£25,092.78, £22,899.75 and £4,019);
    • £20,604.32 on four Personal Assistants;
    • £459.28 to Her Majesty’s Revenues and Customs (HMRC);
    • £160 on insurance;
    • £229 on a bed; and
    • £241.85 on rail travel.
  12. Taking account of £239.33 which had not been spent, this left £19,472.02 which the Council decided had been misspent.
  13. The Council interviewed Mrs X under caution on 14 September and 27 November 2017. The transcripts of the interviews show the Council invited Mrs X to provide evidence to explain what she had spent her son’s direct payments on. Mrs X maintained, as she still does, that she spent all the money meeting her son’s care needs. They discussed individual transactions but Mrs X could not say what they had been for. Nor has she provided any other records to explain what she spent £19,472.02 on.
  14. The Council wrote to Mrs X in May 2019 about the outcome of its two-year investigation. It said:
    • a portion of the funds paid into the direct payment account had been transferred into other accounts;
    • it had asked her to provide evidence to support her claim that money had been used for its intended purpose (i.e. meeting her son’s eligible care needs) but Mrs X had failed to respond;
    • although Mrs X had asked for a further extension, it had decided to bring the investigation to a conclusion;
    • Mrs X had misspent £21,437.79, which included the money identified in 2016 (see paragraph 11 above).
  15. It sent her an invoice for £21,437.79:
    • £1,742.70 – misspent funds in 2012 to 2013 “as recognised by the” Ombudsman
    • £223.07 – misspent on a trip to Italy in November 2016 – July 2016
    • £19,472.02 – misspent funds from August 2012 to November 2015 identified by the Counter Fraud Investigation
  16. The Council has provided copies of statements for the bank account into which it paid Mr Y’s direct payments and three other bank accounts, all in Mrs X’s name, into which she transferred money from the direct payment account.

Direct payment account

  1. The statements show the Council paid £93,417.33 into this account, although Mrs X says this was £101,392.89. The statements show she:
    • spent £1,011.17 on a debit card (less a refund of £43.70), much of which the Council has accepted;
    • took out £120 in cash, which the Council has not accepted;
    • transferred most of the money to a bank account she used to manage her son’s money;
    • from January 2015 started paying care agencies and personal assistants directly from the account (£22,367.18), which the Council has accepted;
    • last transferred money from the account (£324.60) on 6 July 2015.

Current account used to manage Mr Y’s money

  1. The statements show that much of the money transferred from the direct payment account corresponds with payments to the care agencies, personal assistants or for specific items relating to Mr Y’s care, all of which the Council has accepted. However, they also show that:
    • transactions totalling £13,434.35 do not correspond with any specific payments from the account;
    • Mrs X transferred £14,846.26 into another bank account in her name.

Current account used to manage Mrs X’s money

  1. There is no evidence of Mrs X transferring money from the direct payment account into this account. However, there are occasions when she transferred money from the account into which she paid £14,846.26 (see paragraph 27 below). For instance, on 31 January 2014 she transferred £1,270.04 from the direct payment account into that bank account and on the same day made three transfers totalling £650 into this account. There is nothing in the statements to suggest this money was spent meeting her son’s care needs.

Another current account used to manage Mrs X’s money

  1. Mrs X transferred £14,846.26 into this account. She paid £11,875.94 from this account to Personal Assistants.
  2. The bank statements show Mrs X paid £1,745.77 to HMRC (not £459.28) and £30 more to one of the care agencies than the Council accepted. This means the figure amount the Council is reclaiming needs to reduce by £1,316.49.
  3. Mrs X provided the Council with copies of invoices which enabled it to validate some of the unidentified expenditure from the bank accounts. But it has left £18,160.53 for which there is no evidence it has been spent on Mr Y’s care.

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

  1. The Council has not dealt with this matter well. It knew in March 2013 that Mrs X’s arrangements for managing her son’s finances were not right. It also asked her to repay £2,254 which it said had not been spent meeting her son’s care needs. It advised her to get help opening a bank account to manage her son’s direct payments. But it failed to ensure these things were done and left Mrs X managing her son’s direct payment in the same way as she had done before. While this is fault, I cannot say it caused injustice to Mrs X ,as it was her choice to do what she did and they had had the benefit of money which should have been spent on her son’s care. The Council says it has improved its processes, provided training to staff and now has more Direct Payment Audit Officers, which should reduce the risk of officers failing take robust and timely action when they identify problems with the use of direct payments. It has also introduced the option of prepayment card accounts, which remove the need to open a bank account but provided for online access to transaction and for invoices to be uploaded.
  2. The Council’s investigation identified the money spent meeting Mr Y’s care needs (£73,705.98). The Council has agreed that this figure needs increasing by £1,316.49 (see paragraph 28 above) and that the figure for unexplained expenditure needs to reduce to £18,160.53. Apart for that, I cannot find fault with the Council over its decision that Mrs X has misspent her son’s direct payments. In signing the direct payment agreement in 2012 she agreed to keep records of what she spent the money on but did not do so. The Council raised concerns in 2013 but Mrs X continued doing what she had been doing.
  3. Mrs X is adamant that she spent all the money meeting her son’s care needs. She has provided spreadsheets itemising what she says she has spent the money on. However, many of her figures bear little relation to the evidence in the bank statements. For instance, she says the Council paid in £101,392.89 although that was not the case. She says she paid £12,903.27 to one care agency, despite the Council accepting she paid it over £25,000.
  4. However, the Council was at fault for adding the money it decided had been misspent in previous audits (£1,965.77) to the £19,472.02, as that meant it was reclaiming expenditure which it had validated. The Council accepts this was a mistake and has agreed to correct it.

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Agreed action

  1. The Council has agreed to correct the mistakes with some of its figures, which will reduce the amount it is reclaiming to £18,160.53.

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Final decision

  1. I have completed my investigation as the Council has agreed to correct its mistakes.

Parts of the complaint I did not investigate

  1. I have not investigated Mrs X’s concerns about a delay in giving her son a personal budget in 2012, or the adequacy of his personal budgets. This is because these are late complaints (see paragraph 5 above) and there are no good reasons to investigate them now.

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Investigator's decision on behalf of the Ombudsman

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