Summary: There is no fault by the Council in its action to pursue a debt from the late Mrs Y’s estate.

The complaint

1. Ms X complains the Council is seeking repayment of direct monies from her late mother’s estate.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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 have:

• considered the complaint and the correspondence between Ms X and the Council, including the Council’s response to the complaint
• made enquiries of the Council and considered the responses
• taken account of relevant legislation
• offered Ms X and the Council an opportunity to comment on a draft of this document, and considered the comments made.

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What I found

Relevant legislation

5. Direct payments are cash payments made by councils to people with assessed eligible care needs so that people or someone on his or her behalf can buy their own services as opposed to having services arranged by the council. The idea is to give the service user a measure of flexibility and choice that they might not otherwise have if services and goods were directly commissioned. Direct payments allow a service user to have control and choice over who provides the service and how the service is delivered. Councils are under a duty to make direct payment to service users who meet certain criteria and agree to receiving a direct payment.
6. Direct payments come from public funds. The council must monitor and review direct payments. In certain circumstances councils can discontinue direct payments as a way of arranging services and seek to recoup money allocated as a direct payment to the service user.

What happened

7. Mrs Y first received direct payments from the Council in August 2012, which she used to purchase home care services. As part of the direct payment agreement Mrs Y was required to open a bank account specifically for the direct payments. She was also asked to provide information for auditing purposes on a six-monthly basis.
8. Mrs Y had capacity to manage her financial affairs. The Council says Ms X was involved in supporting Mrs Y with her financial affairs, more so, after she was admitted to hospital. Ms X refutes this.
9. An audit of the direct payments undertaken by the Council in 2014 identified expenditure not identified in line with Mrs Y’s care plan. Cash withdrawals totaling £3130.12 had been made from the account, there was unauthorised expenditure and unpaid client contributions of £1859.38.
10. The Council wrote to Mrs Y about this in November 2014.
11. Mrs Y contacted the Council’s audit team to discuss the letter. She said she could not afford to pay the assessed contribution. During the conversation it became apparent that Mrs Y was not aware she needed to keep receipts or that she needed to pay a contribution towards her care. Neither did she have a bank account solely for direct payments
12. Following this an officer from the Council’s financial assessment team visited Mrs Y in November 2014 to explain the direct payment process further and complete a budget planner, the outcome of which concluded Mrs X had sufficient funds to pay her client contribution. During the visit Mrs Y queried her entitlement to NHS Continuing Healthcare funding (CHC) and whether this could be used to pay Ms X to look after her at home 24 hours a day. CHC is for people who are assessed as having ongoing healthcare needs. It is arranged and funded by the NHS. Care can be provided in a care home, or in a person’s own home.
13. The officer informed Mrs Y that a CHC checklist had been completed, this concluded she was not entitled to CHC funding at that time, but she was entitled to NHS funded nursing care contribution should she go into a residential nursing placement. The officer explained NHS funded nursing care contribution was not payable to people living in their own homes.
14. The Council accepted the visit took place ‘sometime’ after direct payments started so it agreed to waive the full amount of unauthorised expenditure £3130.12. The Council did not waive the unpaid client contribution.
15. The Council says Ms X was aware Mrs Y was not paying her client contribution because she had been present when officers discussed it with Mrs Y.
16. After advice from the Council Mrs Y used a bank account solely for direct payments. Statements from the account confirm it was used only for direct payments and expenditure for care services.
17. Mrs Y went into hospital on 30 January 2015. The Council continued to pay the direct payments because it expected her to return home. On 4 February 2015 Mrs Y was discharged from hospital to a rehabilitation bed at a nursing home. She remained there until 30 July 2015 when she transferred to another nursing home on a temporary basis. The Council says the plan was to work towards her return home. It continued to pay direct payments for six months after Mrs Y went into hospital/residential care.
18. The Council ended the direct payments on 26 July 2015 after a conversation with Ms X in which she told the Council she was going away and Mrs Y could not return home as she would not be there to support her.
19. The records show Ms X contacted social services on 27 July 2015 to say she was unhappy that the direct payments had stopped.
20. The Council wrote to Mrs Y in August 2015 to confirm the cessation of the direct payments and asked for financial information in order it could complete a final audit of the account.
21. Mrs Y did not return home due to failing health. She was assessed as meeting the criteria for CHC from 5 November 2015.
22. The decision to make Mrs Y’s residential care permanent was made in January 2016.
23. Mrs Y passed away in April 2017.
24. In November 2018 the Council wrote to Ms X seeking repayment of £20,057.21, made up of unauthorised expenditure, unpaid client contributions, and £12,036.93 for the period Mrs Y was in hospital from 31 January 2015 until payments ceased on 26 July 2015.
25. The Council acknowledged the sum was significant and offered an extended period in which it could be paid. It said an officer from its financial assessment team would complete an assessment to determine an affordable repayment plan.
26. The Council acknowledges it delayed in contacting Ms X after Mrs Y’s death. It says it has since reviewed and amended its practice.
27. Mrs X says she assumed the money left in the direct payment account was hers, that her mother had left her the money.

Analysis

28. Councils are entitled to recoup direct payment monies that have been diverted from the purpose for which it was intended or that has simply not been spent at all.
29. In this case Mrs Y had unpaid contributions which she refused to pay. Although Mrs Y managed her financial affairs until she was admitted to hospital Ms X was aware Mrs Y was not paying her client contributions because she was present when officers discussed it with Mrs Y. This debt is due from Mrs Y’s estate. Ms X was also aware direct payments continued to be paid after Mrs Y was admitted to hospital because Ms X contacted the Council when the payments stopped. She was aware the money in the direct payment account was from public funds and not the personal funds of Mrs Y.
30. The Council should have acted sooner than it did to recoup the monies, it acknowledged this. However, Ms X could have contacted the Council to return the money. She did not do so.
31. There is no fault in the Council pursuing a debt from Mrs Y’s estate.
32. The Council has offered Ms X an extended repayment plan. I consider this satisfactory.

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Final decision

33. There is no evidence of fault by the Council in its action to pursue a debt from Mrs Y’s estate,
34. It is on this basis; the complaint will be closed.

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Investigator's decision on behalf of the Ombudsman