Summary: The Ombudsman will not investigate this complaint about how the Council dealt with the complainant’s direct payment account. This is because it is unlikely an investigation by the Ombudsman could add to the Council’s response.

The complaint

1. Mr X has complained on behalf of his son, Mr Y, about his direct payment account. Mr X says the payroll company appointed by the Council incorrectly calculated Mr Y’s direct payments and this has led to a shortfall in the account. Mr X says he has had to use his own savings to pay for his son’s care as a result.

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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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the Council.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I have considered Mr X’s complaint and the Council’s responses. I invited Mr X to comment on a draft of this decision.

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What I found

4. Direct payments are a means of paying all, or some, of someone’s personal budget so they can arrange and pay for their own care. Direct payments provide independence, choice and control over the way a person’s needs are met.
5. Where a person uses a direct payment to employ a personal assistant (PA), they become an employer with the responsibilities that go with this. This includes the payment of sick pay, maternity pay and income tax.

What happened

6. Mr Y receives care and support at home which is funded by direct payments from the Council. Mr Y has a PA to help meet his needs. Between December 2018 and 2019 Mr Y’s PA received Statutory Sick Pay (SSP) and then Statutory Maternity Pay (SMP). During this time, Mr X arranged for another PA to meet Mr Y’s needs. The payroll company appointed by the Council told Mr X that the SMP paid from the direct payment account in advance would be reimbursed by HMRC. Mr X complained to the Council after he received a tax bill from HMRC and said that the cost to pay the second PA as well as the SMP had drained the direct payment account. He believes the amount paid into the direct payment account by the Council has been miscalculated.
7. The Council looked into Mr X’s concerns and agreed that there seemed to be inconsistencies with the direct payment account. It said £2366.97 was paid into the account by HMRC for the SMP in April 2019. However, the payroll records show that £4267.78 was taken from the account. The Council said it would investigate this further.
8. Following this, the Council liaised with the payroll company, who was in contact with HMRC. An officer from the Council also visited Mr X to discuss the matter further and review the direct payment accounts.
9. The Council discovered that HMRC had actually paid £4395.80 for SMP, this included an additional 3% for small employer relief. This was paid in two separate payments into Mr Y’s direct payment account and therefore the Council did not notice the second payment when it first looked at Mr X’s complaint. The Council has also said the SSP for Mr Y’s PA cannot be reclaimed, but this was covered by the reserves in the direct payment account.

Assessment

10. I will not investigate Mr X’s complaint about how the Council has dealt with Mr Y’s direct payment account. This is because it is unlikely an investigation by the Ombudsman could add to the Council’s response.
11. When someone uses their direct payment to employ a PA, they are responsible as employer to pay SSP, SMP and income tax. The amount paid for SMP can be recovered from HMRC. In this case, there was some confusion about the SMP payments. However, the Council has now shown that the SMP has been recovered and paid back into Mr Y’s direct payment account. The Council has also apologised for how long it took to look into Mr X’s concerns. It accepts that more training is needed, and it will ensure records are properly checked going forward to avoid anything being missed in future.
12. As the Council has now properly looked into the matter it is unlikely an investigation by the Ombudsman could achieve anything further or add to the Council’s response.

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Final decision

13. The Ombudsman will not investigate this complaint. This is because it is unlikely an investigation by the Ombudsman could add to the Council’s response.

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Investigator's decision on behalf of the Ombudsman