Summary: Mrs B complaints about how the Council dealt with direct payments for her daughter’s care. We find that there was fault by the Council in this matter, leading to injustice for which a remedy has been agreed.

The complaint

1. The complainant, whom I shall call Mrs B, complains on behalf of her disabled daughter Ms C about how the Council dealt with funding for respite care. In particular her complaints include that the Council made gross payments then sought to recover some money each month, and failed to explain the reasons for this; issued invoices with incorrect dates and for sums which were not adequately explained; attempted to seek agreement from her to pay the disputed invoices; and issued letters threatening legal action. Mrs B says that these matters caused unnecessary stress and led her to return money from the account to the Council and to ask for nothing further to be paid.
2. Mrs B also complains that the Council imposed direct payments rather than offering this as an option.

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What I have investigated

3. I have investigated how the Council dealt with the invoicing for Ms C’s contribution towards her care costs, and how it dealt with Mrs B’s communications about this matter.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

7. I considered all the information provided by Mrs B about her complaint, and of information provided by the Council in response to my written enquiries.
8. I have taken account of the Ombudsman’s guidance on remedies.
9. Mrs B and the Council had an opportunity to comment on my draft decision.

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What I found

Legal and administrative information

10. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge.
11. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs.
12. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan.
13. Direct payments are a means of paying some, or all, of the personal budget to the person to arrange and pay for their own care. They are intended to provide independence, choice and control over the way needs are met and outcomes achieved.

Background

14. Ms C is disabled. At the time of the events referred to in this complaint, she was attending a residential school during term-time. Direct payments (DPs) were being made for Ms C’s support during non-term time and Mrs B looked after the direct payment account on her daughter’s behalf.

What happened in this case

15. From April 2019 there were many contacts between Mrs B and the Council in connection with the direct payments and the invoices for care: in this statement I will refer to the key contacts relevant to this complaint.
16. In April 2019, the Council wrote to Mrs B about Ms C’s contribution (‘the client contribution’) towards her care costs for outside term times, setting out that she had been assessed as liable to pay £4.04 each week. It set out relevant periods from October 2018 to June 2019 and said it would invoice for these, giving a total sum due of £38.37. The Council said its contribution of £32.22 in DPs would not change. In May 2019, the Council wrote again saying Ms C’s contribution had been reassessed to take account of changes in her income from benefits. It said her contribution would be nil with effect from 26 September 2018; £51.50 a week from 26 January 2019 and £61.93 a week from 8 April 2019 (non-term times only).
17. Around this time Mrs B was experiencing problems with the bank account into which the DPs were usually made. Because of this the Council was not making its payments into the account. Mrs B contacted the Council asking how much she should pay for the client contribution and how the payments should be made while the banking issue was being resolved. She was advised to leave the invoices aside until the banking issue was resolved.
18. On 21 May 2019, internal emails between Council officers set out that action needed to be taken to change Ms C’s support plan so that the DPs were paid in college holidays only, rather than averaged across the year: this would allow invoicing to be done correctly. But no action was taken on this until November 2019. That was fault.
19. On 28 May, a council officer requested that a block be placed on the DP account to prevent invoices being sent to the family: this block was authorised on 3 June but was not implemented. That was fault.
20. In early June, Mrs B telephoned the Council to advise the banking issue had been resolved. But in the interim she had received a reminder about an unpaid invoice and had been warned by the Council’s finance team about bailiff action for recovery of the debt. The Council issued a further invoice. Mrs B wrote to the Council on 25 June questioning why invoices were still being issued despite no DPs having been paid by the Council since February, and why the Council could not deduct the client contribution and pay in just the net sum to the account. The Council continued to issue invoices and reminders.

Mrs B complains to the Council, but problems continue

21. On 18 October 2019 Mrs B complained to the Council. An officer spoke to Mrs B on the telephone on 4 November. The records note that Mrs B was unclear how the invoice sums had been calculated and that she was frustrated by the charging process and felt she had not been provided with adequate information. Having received another large invoice on 7 November, which the Council had issued on 1 November, Mrs B telephoned the Council again and it was noted that she was worried and stressed by the invoices she had received. An officer called Mrs B back and advised her to ignore the invoices and await adjusted amounts to reflect alteration of the support plan (which had been requested in May, as noted at paragraph 18 above).
22. When Mrs B spoke to the Council again on 12 November, the officer she spoke to said that it was their understanding that the inaccurate invoices could not be stopped because the process automated. That was not correct, because a block on the account was possible (and had been requested in May, as noted at paragraph 19 above). But as the block had not been actioned, on 18 November Mrs B received a final reminder for a sum shown as outstanding and had to telephone the Council again. Although the Council then issued a credit note, it also went on to issue another final demand and a threat of legal proceedings for recovery. Mrs B telephoned the Council again and left messages.
23. On 26 November 2019, the Council issued its response to Mrs B’s complaint. It confirmed the basis for the charges following the reassessment in May 2019. But it also noted that Ms C’s support plan incorrectly failed to reflect that the support package was non-term time only, which meant that when she had returned to education in September the invoiced amounts kept charging, which should not have happened: it said this had now been put right and contribution amounts would be amended to reflect this. The Council said it had asked the relevant department to write with a detailed breakdown of the costings including amounts deducted because of overcharging, and on 28 November a spreadsheet was provided.
24. Mrs B continued to correspond with the Council because the information she had received was confusing and contradictory. She said she had asked for a meeting with the Council’s financial services department and that an officer had suggested she had agreed to pay the reimbursement into the DP account which was not correct: Mrs B said the officer had tried to compel her to agree to this when in fact she did not want to pay anything in until she had a complete clarification of the outstanding position and the invoicing was correct. Mrs B said due to the distress and uncertainty about what was available to spend on Ms C’s care, she would be closing the DP account and required no further payment from the Council. She wrote again on 4 December, enclosing the balance from the DP account and noting that she had now received two further reminder invoices despite having repeatedly pointed out that they were not correct. The following day in a telephone conversation the Council advised that she could consider a council-managed budget as a way forward, and the record states that she agreed to consider this but was clear she no longer wished to manage the DPs.
25. Mrs B requested escalation of her complaint. She continued to receive further final reminder notices.
26. On 10 January 2020, the Council issued its final response to the complaint. It agreed with Mrs B’s point about the Council making payments then seeking recovery but as she had decided to stop receiving direct payments adjustment to net payments would not now take effect. It said it understood a block had been placed on the account and that she should not have received further invoices but once confirmation was received of the date of closure of the DP account a final invoice would be issued for any outstanding assessed contribution. The Council acknowledged there had been a great deal of confusion about the DPs and it apologised for this.

Analysis

27. As noted at paragraphs 18 and 19 above there were faults by the Council in failing to take action to get the plan amended to facilitate accurate billing, and in failing to put a block on the account to stop inaccurate invoices and reminders being issued. These faults were compounded by a failure by the Council to have an oversight of what was happening in this case: internal communications did not lead to anyone taking overarching responsibility for getting the issues resolved.
28. Considering the above I can see why Mrs B asked for a meeting with the finance department. It was not fault for the Council to refuse this request, however.
29. There was further fault in this case in the Council’s failure to confirm what support Ms C might need following the ending of the DPs, as it did not follow up on the suggestion of a council-managed budget.

Injustice to Mrs B

30. As a result of the failings identified above, Mrs B has been caused anxiety and distress as well as being put to considerable time and trouble seeking to resolve matters. Neither Mrs B nor Ms C have had the level of support they should have had from the Council following the cessation of the DPs.

Agreed action

31. Responding to my enquiries on the complaint the Council has acknowledged failings in this case impacting on both Mrs B and her daughter, and it has offered to pay them each £250 in recognition of this. I welcome the Council’s proposal but taking account of the injustice in this case and the Ombudsman’s guidance on remedies I recommended that within four weeks of the date of the decision on this complaint the Council:

• Issues Mrs B with a formal written apology;
• Pays Mrs B £350;
• Pays Ms C £250;
• Contacts Mrs B to follow up the possibility of a council-managed budget, providing relevant information to assist in her decision-making; and
• Arranges a wellbeing review for Ms C to establish any support needs for when she is at home.

32. In addition I recommended that within three months of the date of the decision on this complaint the Council completes a review of lessons learned from this complaint and outlines to the Ombudsman the steps taken to ensure that so far as possible the faults identified in this case do not recur.
33. The Council agreed to my recommendations.

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Final decision

34. I completed my investigation on the basis set out above.

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Parts of the complaint that I did not investigate

35. I did not investigate that part of the complaint which concerns the imposition of direct payments. This is because of the passage of time since direct payments commenced, which I understand was in 2016. Mrs B might reasonably have complained to the Ombudsman about that matter sooner.

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Investigator's decision on behalf of the Ombudsman