Hertfordshire County Council (19 019 240)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 15 Jan 2021

The Ombudsman's final decision:

Summary: Mr P complained that the Council and Trust stopped his direct payment without telling him, and did not give him the information he needed about how direct payments worked. The Trust, on behalf of the Council, apologised and paid Mr P a financial remedy. They also made improvements to how direct payments are managed following Mr P’s complaint.

The complaint

  1. Mr P complains the Council and Trust stopped his direct payment without telling him this was going to happen. He says he was never told the direct payment should be reviewed annually, that he did not receive any communication about reviews, and was not informed that direct payments are for a limited time.
  2. Mr P also says he made a complaint about a member of staff from the Mental Health team, but that neither the Trust nor the Council investigated this.
  3. Mr P says these events caused him depression and anxiety, and that his physical health also deteriorated. He says he also incurred financial loss.

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The Ombudsmen’s role and powers

  1. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
  2. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
  3. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended).
  4. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA,as amended, and Health Service Commissioners Act 1993, section 18ZA)

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How I considered this complaint

  1. In coming to this decision, I considered information from Mr P, including complaints correspondence between him and the Trust and Council. I made enquiries of the Trust and Council and considered the information I received in response. I also took account of relevant legislation and guidance.
  2. Mr P, the Trust and Council had an opportunity to comment on a draft version of this decision. I considered any comments I received before making a final decision.

Relevant guidance and legislation

  1. Direct payments are given to service users or their representative by councils so they can buy community care services. The payments must be enough to enable the service user to buy services to meet their eligible needs, and must be spent on services that meet eligible needs.
  2. People who receive direct payments may need particular support when they first take on responsibility for managing their own or somebody else’s care or become employers for the first time. Councils should give the person support and written information about what receiving direct payments will involve as early in the process as possible. In order to make an informed decision, people need to understand what is involved in managing direct payments. A person does not have to choose direct payments. They can choose instead to receive services that are provided or arranged by a council.
  3. Councils must review the direct payment within the initial six months and then annually. However, councils often have arrangements with other organisations to provide this service.

Delegating functions - NHS Act 2006

  1. Section 75 of the NHS Act 2006 allows NHS organisations and councils to arrange to delegate their functions to one another. These arrangements are known as Section 75 Agreements. Under these agreements, NHS organisations can take on the provision of social work services which are normally the responsibility of councils. The NHS and councils remain liable for the exercise of their own functions.  

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What I found

  1. Mr P’s social care needs were first identified following an assessment in March 2012. In January 2013, Mr P had a further assessment and was found eligible for funded support. A direct payment was arranged. Under a Section 75 agreement (as explained in paragraph 15), the Trust administered the payment on behalf of the Council, as Mr P was under the care of the Trust’s community mental health team. It was agreed that Mr P would use the direct payments to fund swimming and gym sessions. As part of Mr P’s personal budget, a direct payment of £4.75 per week was agreed.
  2. In 2014, Mr P’s consultant psychiatrist reviewed him and documented that Mr P had no eligible social care needs. However, no action was taken on this and the direct payments continued.
  3. A further social care assessment took place in February 2018, and found that Mr P no longer met the threshold for care and support services. However, the payments continued until they were stopped in September 2018.
  4. Mr P complained to the Council about his payments being suddenly stopped without warning. The Council responded that it had no record of any direct payments to him. Mr P supplied the Council with some correspondence it had sent him about direct payments and changes to the payment amount. The Council then referred him to the Trust, as the Trust had handled and stopped the payments.
  5. In August 2019, the Trust met Mr P to discuss his concerns, and in October 2019 a further social care assessment was carried out. The outcome of the assessment was that Mr P was not eligible for financial support, which Mr P disagreed with.
  6. The Trust then responded in writing to Mr P’s complaint, incorporating comments from its meeting with Mr P, and the social care reassessment. Mr P was dissatisfied with the response and complained to the Ombudsmen.

My analysis

  1. Although the Council has responsibility for direct payments, in Mr P’s case, these were administered by the Trust on the Council’s behalf under a section 75 agreement.
  2. When Mr P complained, the Council signposted him to the Trust for a response. There was a delay in responding to the complaint, which the Trust accepted. It seems there was some difficulty establishing which organisation held the information on what had happened. Mr P said this left him feeling as though he was being passed back and forth between the two organisations.
  3. I consider it was reasonable for the Trust to respond to the complaint, as it had managed Mr P’s direct payments and was likely to have more knowledge of what had happened. However, it clearly did take some time to establish who held the information needed to respond. The Trust apologised to Mr P for this delay.
  4. In its response to Mr P’s complaint, the Trust said it should have discussed the direct payment with Mr P after the review by the consultant psychiatrist in 2014. It also accepted it had not discussed the outcome of the 2018 review with Mr P, and said this should have happened within 28 days of each review. The Trust also accepted that the direct payments should have been reviewed annually but that this did not happen, and that it should have given Mr P 28 days’ notice that his payments were going to be stopped in September 2018.
  5. As a remedy for the lack of communication it had identified, the Trust reimbursed Mr P £264 to cover the swimming sessions he had paid for from September 2018, when the payment stopped, until October 2019 when his care and support needs were reassessed. The Trust also apologised to Mr P for the lack of communication and for the distress this had caused.
  6. Having considered the above information, I found that the Trust provided a reasonable remedy to Mr P for the issues it identified in managing his direct payments on behalf of the Council.
  7. Mr P also raised concerns about the October reassessment. He said the Trust did not make the purpose of the meeting clear to him beforehand. He said this meant that at the assessment, he had to discuss things that he was not prepared for. Mr P also said his concerns about this were not investigated The Trust responded that before the meeting, it had sent Mr P three emails explaining the purpose of the meeting was a review of his personal budget, and said it had also explained this to him at the meeting in August.
  8. The Trust apologised if Mr P had not received the emails or if the explanations were unclear. The Trust also recognised that Mr P was unhappy with the outcome of the October 2019 care and support assessment, and offered him a further assessment with a senior social worker from elsewhere in the Trust. It said the aim of this was to help Mr P “feel confident that [his] needs have been carefully considered”.
  9. In response to my enquiries, the Trust provided copies of the emails it sent Mr P before the October reassessment. I recognise Mr P said he did not receive these, but the emails do explain the purpose of the meeting was to review his personal budget. This response indicates the Trust did investigate Mr P’s concern about the October reassessment and the communication he received beforehand.
  10. With regard to the Trust’s complaint handling, the Trust said Mr P’s concerns had originally been handled outside the complaints process, and it took some time to establish what had happened. The Trust offered appropriate apologies to Mr P for the delays in its complaint handling.
  11. In response to my enquiries, the Trust said it has taken action to improve the service it provides when administering direct payments on behalf of the Council. It said senior social workers within the Trust would provide additional training for all staff carrying out social care assessments to ensure that copies of assessments, which explain eligibility for support, are provided to service users.
  12. The Trust said it has reminded staff that if direct payments are to be stopped, a template letter explaining this should be completed and sent to service users 28 days in advance of the payment stopping. The Trust also said staff have been reminded to provide people with information about direct payments, so they are aware that reviews will take place, both of the support plan and the budget.
  13. I found that the Trust, on behalf of the Council, took reasonable steps to prevent recurrence.

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Final decision

For the reasons explained in the Analysis section, I have completed my investigation and uphold Mr P’s complaint. There was fault in the way Mr P’s direct payments were managed which caused injustice to Mr P. I am satisfied the organisations have taken appropriate steps to address this.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman

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