Summary: The Council was at fault for failing to provide enough information about how Mr C could use a direct payment, and to suspend demand letters. The Council has agreed to apologise for the failures identified, waive the arrears that have accrued on Mr C’s account, and make a payment of £100 to Mr E for the distress, time and effort caused by the demand letters. The Council has agreed to remind staff to record what information it gives to people receiving services. It will also review information it provides about what direct payments can be used for.

The complaint

1. The complainant who I refer to as Mr E complains in his own right and on behalf of his father, who I refer to as, Mr C. Mr E complains the Council:-
1. inappropriately asked Mr C for a repayment of money from a direct payment;
2. caused stress and frustration by its aggressive pursuit of the alleged arrears;
3. passed him between several departments when dealing with this complaint.
2. Mr E says as a result Mr C has an outstanding debt and the Council’s actions have caused him time, trouble and distress.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I considered Mr E’s complaint to us and the documents he provided. I spoke with Mr E and made written enquiries of the Council. I considered the Council’s response which included:-
• case recording;
• direct payment paperwork;
• complaint correspondence.
6. Mr E and the Council have had an opportunity to consider a draft of this statement. I have considered any comments made before reaching a final decision.

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What I found

What happened

7. Mr C lives in his own home. He needed support to maintain his independence and contacted the Council via a worker from a community based charity. For ease I will refer to the worker as P.
8. P liaised with the Council and visited with the assigned social worker. The social worker completed an assessment of Mr C in August 2019. It assessed Mr C as meeting the criteria for support and awarded him a direct payment. This is money paid by the Council for people who have assessed eligible needs to choose what services to buy to meet their needs.
9. The care and support plan sets out how this will be achieved. In Mr C’s case the,
10. “provision of 7 hours per week direct payments for the purchase of assistance with meal provision, personal care and toileting”
11. The Council made a backdated payment from May 2019. Mr E says the Council told him he could spend the back payment on repairs to Mr C’s house. Mr E says he spent the money in good faith based on P’s advice. The Council does not dispute how Mr C spent the money, or Mr E’s account of P’s advice. It says P’s advice was wrong and not in line with the support plan.
12. The Council says it is not responsible for advice provided by a third party. The Council refers to the support plan which says what Mr C could use the direct payment for. It also relies on information within the direct payment agreement and direct payment leaflets it says it gave to Mr C.
13. The direct payment agreement is unsigned and there is no other record of the Council giving the leaflets to Mr C. There is also no information in any documents provided about what to do with a back payment, where a person cannot buy care for a past period.
14. The Council invoiced Mr C for the amount under dispute. Mr E contacted the Council asking for it to put a hold on the account while he raised a formal complaint. The Council records,
15. “I assured him I would not be chasing payment, and a hold would be put on this invoice and confirmed this to him via email as requested. I have applied Dunning Block 'A' to the invoice so the automatic 14 day reminder should not be released.”
16. However Mr E says he continued to receive invoices and in January 2020 the Council sent him a “7 day Debt Letter”.
17. The Council accepts it should not have sent a debt recovery letter while the complaint was ongoing. The Council also accepts that because of the different departments involved in the case such as the social work team, and the direct payment team; Mr E may have had to repeat himself. This is because different departments within the Council do not have a shared recording system. It is therefore difficult for officers to know about the actions of other departments.
18. Mr E submitted his complaint on 13 November 2019, he received a stage 1 response on 11 December 2019 and a stage 2 response on 20 February 2020. At both stages the Council did not uphold Mr E’s complaint.

What should have happened

19. The Council’s Direct Payment Information sheet C2 says,
20. “Is there anything I cannot use my Direct Payment for?
21. You must only use your Direct Payment to achieve the things written in your care and support plan, and there are some things you cannot use your Direct Payment for, an example, to pay household bills”
22. The Direct Payments Guidance Information Sheet C3 also provides a list of things the direct payment cannot be used for. This includes household bills, food bills and debts.

Is there fault causing injustice

23. The support plan clearly states what Mr C could use the direct payment for. The Council relies on information leaflets that it says Mr C received which supports the view that Mr C could only use the direct payment for help with meals and personal care. There is no evidence that Mr E received these leaflets, and the direct payment agreement although completed is unsigned. I consider this is fault.
24. Even if these documents were signed and received, they are silent about what to do if a person receives a payment of money for an elapsed period. While an information leaflet cannot include every eventuality; it is likely that because of the direct payment process, back payments are common. The Council should therefore reinforce how recipients can spend the money at the time of the back payment or within the general literature provided.
25. I consider Mr E’s confusion was understandable. He sought and followed advice, from what he thought was a legitimate Council source. P had visited Mr C with the social worker and had been involved with Mr C’s care over a period of months. The Council accepts Mr E received the advice and spent the money accordingly.
26. The Council is not responsible for information provided by a third party. In this case however there is insufficient evidence to show, on balance, the Council provided Mr E with the information leaflets, or a reminder/added information when it made the back payment about how Mr C could use the money.
27. The Council has accepted there was fault in the pursuit of the arrears while the complaint was pending, and that Mr E would have had to repeat himself to different departments. The Council’s actions caused Mr E anxiety and time and trouble in dealing with the demand for payment and raising his complaints.

Agreed action

28. I have found fault in the actions of the Council. The Council has agreed to take the following action to remedy the complaint:-
1. apologise to Mr C and Mr E for the failures I have identified in this statement;
2. waive the arrears that have accrued on the account;
3. pay Mr E £100 for the anxiety caused by the Council’s actions, and the additional time and trouble he had in explaining himself several times;
4. remind staff about the importance of obtaining signatures on agreements and recording when officers have given important information leaflets;
5. remind staff to be clear about their role and responsibilities, where there are third parties involved;
6. review information that is provided, in particular, what to do in the case of back dated payments so that recipients are clear about how they should be used.
29. The Council should complete actions (a) to (c) within one month of the final decision and (d) to (f) within three months of the final decision.

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Final decision

30. I have found fault with the actions of the Council which has caused Mr C and Mr E injustice. I have now completed my investigation and closed the complaint based on the agreed actions above.

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Investigator's decision on behalf of the Ombudsman