Summary: We uphold Ms X’s complaint. The Council is at fault because it: (1) stopped Ms X’s direct payment when a social worker had earlier agreed she could have a managed direct payment; (2) did not complete a formal review of her care and support plan and (3) took nine months to complete a care assessment and reinstate Ms X’s direct payment. The Council has already taken some appropriate action to remedy the injustice to Ms X. It will also apologise to Ms X for the fault and injustice identified.

The complaint

1. Ms X complains Westminster City Council (the Council) stopped her direct payment with no good reason and without notice and failed to respond when she tried to contact the Council about this.
2. Ms X says the Council’s actions caused her distress and stress-related illness and left her in debt, so she had to borrow money to pay her carers.

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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 Ms X’s complaint to the Council and its response. I discussed the complaint with Ms X and considered the documents set out in the next section.
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

7. A council must carry out an assessment for any adult with an appearance of need for care and support, applying national criteria to decide if a person is eligible for care. (Care Act 2014, section 9)
8. An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs. Councils should give the person an indicative timescale and keep them updated. (Care and Support Statutory Guidance 2014, Paragraph 6.24)
9. The Care Act spells out the duty to meet an adult’s eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18)
10. Where a council agrees a person has care and support needs which meet national eligibility criteria, it must issue them with a care and support plan which sets out their needs, explains which is an eligible need and says how much funding the person is entitled to. It should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
11. Many people choose to have a direct payment. This is money a council gives a person so they can arrange and pay for their own care and support.
12. Guidance explains a council should review a care and support plan at least every year, on request or in response to a change in circumstances. The purpose of a review is to see how a care and support plan has been working and to decide if any revisions need to be made to it. The council should act promptly after receiving a request for a review. (Care and Support Statutory Guidance, Paragraphs 13.19-21 and 13.32)
13. Care and Support Statutory Guidance (CSSG) says:
• Councils need to be satisfied a person can manage the direct payment by themselves or with support (paragraph 12.21) They can stop a payment if the person no longer appears to be capable of managing them with whatever support is necessary. (paragraph 12.69)
• Councils need to be satisfied the person is using the direct payment to meet the care and support needs set out in the care and support plan and so must have a system to monitor the direct payment. (paragraph 12.24)
• Councils should give clear advice about the person’s responsibilities as an employer if the person employs PAs. (paragraph 12.49)
• Councils can use pre-payment cards which allow direct payments without the need for a separate direct payment bank account. There should not be blanket restrictions on cash withdrawals as this could limit choice and control. (paragraph 12.58 and 12.59).
• Councils should review a direct payment after the first six months and yearly thereafter. (paragraph 12.64)
• Direct payments can be stopped if a person no longer needs the support for which they were made. (paragraph 12.71)
• Councils should only stop a direct payment as a last resort and should take all reasonable steps to address problems without ending payment. (paragraph 12.67)
• If there is a decision to stop a payment, there should be a review and revision of the care and support plan to ensure the plan is appropriate to meet needs. (paragraphs 12.68 and 12.81)

What happened

14. Ms X received a direct payment from the Council in 2018-2019. Her care and support plan of April 2018 set out her needs and said the Council agreed to fund £100 a week for Ms X to arrange and pay for her own personal assistant (PA) to support her with personal care, meal preparation and shopping.
15. The Council’s case notes record the following discussions between a social worker and Ms X about direct payments:
• In November 2017, a social worker told Ms X any personal assistants (PAs) employed using a direct payment needed to be registered with a payroll company to ensure tax was being paid. Ms X said she thought the arrangements could be informal and she would need to discuss this with the PA she had in mind and would get back to the social worker about whether she wanted a direct payment.
• In December 2017, Ms X told the social worker all the potential PAs she had contacted wanted to be paid cash in hand and so she would continue with council arranged care until further notice.
• In March 2018, Ms X said she wanted a direct payment and to have her friend as her PA.
• In April, Ms X asked the social worker if a PA’s other main job would be affected. The social worker said the PA’s jobs all needed to be declared to the tax man.
• Also in April, Ms X told the social worker she wanted to cancel her agency carers and a family member would care for her temporarily instead until the Council could set up a direct payment. She said she had found a PA and would like a direct payment.
16. Ms X told the social worker she wanted to go ahead with the direct payment. She signed two direct payment agreements with the Council, the first in May and a second amended agreement in July 2018. The agreements set out her responsibilities as follows:
• She needed a separate bank account to be used only for direct payments
• She agreed to the payment card agreement
• She would keep receipts, invoices and timesheets to record all spending of the direct payment
• She should not pay for services in cash unless the care and support plan said she could.
17. The direct payment agreement also said the Council could suspend or terminate the payment if:
• she did not cooperate with financial monitoring
• it felt she could not manage a direct payment even with support.
• she did not spend the payment as agreed in the care and support plan.
18. The agreement went on to say the Council would normally talk to Ms X before suspending or ending the direct payment. And, if the Council did stop payments, it would discuss alternative arrangements to ensure support needs were met.
19. The direct payment team completed a financial review in August 2018 and noted there was no evidence of payroll or employers liability insurance and that Ms X was paying her PA from her own funds and reimbursing herself from the direct payment card (that is, Ms X was transferring the direct payment money from the pre-payment card into her own personal bank account) The social worker spoke to Ms X who said she was using a company for payroll and that she paid her PA in cash, £10 an hours for 9 hours every week. Ms X said she would get insurance. The records indicate Ms X did purchase insurance.
20. The Council sent me Ms X’s prepayment card transaction record. This lists several declined transactions in shops. And, in 2018, eight transactions to shops were successful. Two attempts to withdraw cash in June 2018 were declined as were attempts to purchase items in shops in 2019. There were also regular transfers from the payment card into a bank account which the Council told me was Ms X’s own personal bank account.
21. Ms X told me:
• She couldn’t work out how to get the money from the prepayment card and nobody from the Council was answering the phone, the bank would not help and so she was trying to see who would accept the card by trying it out
• Someone from the Council told her she could go online and transfer the money into her account and then deal with it from there.
• She was not very knowledgeable about technology and put the prepayment money into her own bank personal bank account. She always paid the PA and there was no intention to deceive the Council or to use the money improperly and she did not realise there was a specific process the Council required her to follow.
22. Ms X’s direct payment continued until July 2019 with no further action from either the direct payment or social work teams. This was in spite of the finance team having identified Ms X had transferred funds from the direct payment card into her personal bank account (which was not a separate bank account for the direct payment)
23. At the start of July 2019, the social worker visited Ms X to discuss concerns about the use of the direct payment. The social worker’s note of the visit said:
• Ms X told the social worker no-one had advised her to set up a separate bank account and no-one told her she could not use the card for other things.
• Ms X confirmed she used the payment card for domestic purchases but said the card had been declined.
• The direct payment team had said there was no payroll in place and no insurance. But there was a payroll company and Ms X had got insurance. The payroll company advised the PA was not paid enough to be liable for tax
• Ms X said she was struggling to understand direct payments and was happy for the company to take over all the management of the direct payment.
• The social worker was going to get the company to take over the running of the direct payment. Ms X accepted she struggled with direct payments but wanted to continue with them because the PA was very flexible.
24. In the middle of July, the direct payment manager wrote to Ms X saying the Council had temporarily suspended the direct payment. The letter explained:
• There had been payments of about £250 at shops
• She had transferred about £6000 from the prepayment card to her personal bank account. The PAs regular wage payments should be £360 and the payments from the prepayment card to her account did not correlate with what the wage payments should be
• She needed to provide evidence of the payments to PAs, clarify the discrepancy and repay the £250.
25. The social worker emailed Ms X in the last week of July to ask her for copies of her personal bank statements as proof that she transferred wages to her PA’s bank account as a monthly payment.
26. Ms X emailed the direct payment manager at the end of July, saying she was not good with paperwork and she had always made it clear her PA was a relative and it was an informal arrangement and payments were in cash and no-one objected to this at the time. She attached copies of her PA’s insurance. Ms X acknowledged she used the direct payment card in shops but said the card was declined apart from two occasions. Ms X said the social worker had recently agreed the company would take over running the direct payment. She said the two departments (direct payments and social work) were not communicating. The direct payment manager replied to say she would speak to the social worker and get back to her.
27. Ms X was recovering from surgery at the end of July. The social worker emailed her to ask if Ms X wanted the Council to arrange a care package for her (because the direct payment had been suspended). The social worker noted Ms X needed an occupational therapy (OT) assessment and asked Ms X to call the OT to arrange this. The OT carried out an assessment.
28. Ms X’s direct payment ended in the middle of August 2019.
29. In the middle of September, the social worker wrote to Ms X. She said:
• Ms X needed to speak to the direct payment manager about the decision to stop the direct payment.
• A OT had completed an assessment which concluded that Ms X could manage most of her personal care and other daily activities independently, so the social care team was going to close her case.
• If her needs changed, she could re-refer herself to the social care team.
• Ms X could use the complaints process if she was unhappy.
30. Ms X complained to the Council. It responded in December 2019 saying:
• The outcome of the OT assessment was she could manage her personal care and domestic tasks with some support from a relative and a private cleaner, so the social worker wrote to her to say the Council was ending the direct payment.
• As part of her complaint, she had said her needs had changed and so this would be pursued.
• The direct payment agreement she signed explained her responsibilities clearly including what would happen in the case of misuse of funds.
• The Council should have told her to cancel the payments to the payroll company; it was sorry for not doing this and would deduct this from the debt she owed.
• It was sorry the direct payments manager did not update her to say she was waiting for information from the social worker and OT before replying to emails.
31. Unhappy with the Council’s final response, Ms X complained to us. Ms X said she still had care needs and had no help from the Council. She also complained again to the Council again in July 2020 saying she still needed care and was due to have surgery within the next few weeks.
32. In August 2020, Ms X provided the Council with:
• A statement about how she had been using the direct payment funds
• An email from her PA which confirmed Ms X had paid her in cash every month. The PA said she received £400 a month. The PA said she was still caring for Ms X and Ms X had been paying her £500 a month in cash since November 2019, ongoing, as Ms X’s health had declined and she needed more support
• Confirmation from the payroll company of insurance 2018 to 2020
• A letter from her doctor setting out her health problems
• A request for an urgent re-assessment of her care needs. She said the last contact from the Council was a call in March, she had been borrowing money from friends to pay for her care and this had caused her extreme stress and anxiety.
33. Since complaining to us, the Council carried out a fresh assessment of Ms X. The outcome of the assessment was she has eligible care and support needs. The Council re-started her direct payment with a company managing it on Ms X’s behalf. The Council also accepted Ms X’s PA had continued to care for Ms X after the direct payment stopped and that Ms X had paid her from her own money. The Council told me it had given the company a back payment to cover the PA’s wages for the year Ms X paid the wages. The Council also told me it had decided to pay Ms X £250 to recognise the distress to Ms X, but it considered it had provided appropriate support, guidance and warnings to Ms X at the time it stopped the direct payment.

Was the fault?

34. The Council suspended Ms X’s direct payment in 2019 due to concerns she was misusing it. Ms X accepted she had used the payment card for shopping and had paid her PA in cash after transferring money into her private bank account. The records indicate Ms X was told verbally and in writing in the direct payment agreements she signed that she could not employ her PA informally or pay her in cash and that the money had to be used for things in the care and support plan. There is no fault in the Council raising these issues as a concern with Ms X or in considering suspending the direct payment as CSSG (paragraphs 12.21 and 12.24) says it should monitor and audit a direct payment to make sure the funds are being used appropriately. I note also that the Council offered to commission a care package for Ms X at the time it suspended the direct payment. This action is in line with its duty on section 18 of the Care Act 2014 to meet Ms X’s eligible needs.
35. However, there is fault in the way the Council dealt with Ms X’s case and I uphold Ms X’s complaint because:
• The record of the payment card transactions indicates Ms X tried to use the payment card in shops and was making transfers to her personal bank account and tried to make cash withdrawals in 2018. The direct payment team should have taken action in 2018 to reiterate to Ms X what she could and couldn’t do with the prepayment card and how she could use the money. Although the direct payment team carried out a review in August 2018, there was no follow up about concerns about transfers from the payment card to Ms X’s private bank account until July 2019. This delay is fault as it is not in line with paragraph 12.64 of CSSG because the review in 2018 was ineffective as it did not follow up an obvious concern with Ms X.
• Paragraph12.67 of CSSG says a council should consider action short of stopping a direct payment. This action may include providing additional support to help a person manage a direct payment. The social worker acted in line with CSSG when discussing the use of a company to take over managing Ms X’s direct payment and the records indicate Ms X consented to this. However, it appears the direct payment manager had a different view and decided to suspend and then stop the direct payment. The direct payment manager took this action without consulting the social worker (or at least without documenting any discussion). The direct payment manager’s actions are not in line with paragraph 12.67 and are fault which caused Ms X avoidable confusion because she understood a different officer (the social worker) had agreed to a managed direct payment.
• The Council stopped Ms X’s direct payment after an OT assessment. While a council can stop funding if a person does not have eligible unmet care needs, there should be a formal review of a care and support plan first (CSSG paragraphs 13.19-21 and 13.32). There is no evidence of a formal review of the care and support plan before the decision to stop funding. An OT assessment may inform a review, but it is not a review of a care and support plan.
• Ms X continued to contact the Council in her complaint in 2019 and in March 2020 to say she required care and was paying her relative privately to act as her PA. The Council said in its December 2019 complaint response that it would respond to Ms X’s statement that her needs had changed, but it took from December 2019 to August 2020 to complete re-assessments and decide Ms X had eligible care needs. Taking nine months to complete an assessment is not in line with paragraph 6.24 of CSSG and is fault.

Did the fault cause injustice?

36. The faults identified caused Ms X avoidable confusion and distress and a financial loss as she had to pay for care privately. The Council has not accepted any fault, but it has reinstated Ms X’s direct payment, made a back payment to cover the financial loss and also agreed a payment of £250 to reflect Ms X’s avoidable distress. This is a partial remedy for the injustice.

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Agreed action

37. To remedy the outstanding injustice, the Council will, within one month, apologise for the fault identified in this statement and the avoidable confusion, distress and financial loss to Ms X.

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Final decision

38. The Council is at fault because it: (1) stopped Ms X’s direct payment when a social worker had earlier agreed she could have a managed direct payment; (2) did not complete a formal review of her care and support plan and (3) took nine months to complete a care assessment and reinstate Ms X’s direct payment. The Council has already taken some action to remedy the injustice, but it will also apologise to Ms X.
39. I have completed the investigation because I am satisfied the agreed action remedies the outstanding injustice to Ms X.

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Investigator's decision on behalf of the Ombudsman