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Northumberland County Council (20 000 293)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 17 Jun 2021

The Ombudsman's final decision:

Summary: Ms X complains about the way the Council has dealt with Ms Y’s direct payment account and its decision to decline arranging a further independent audit of her account. The Council is not at fault for declining to offer a further independent audit to Ms Y. The Council is at fault as its communication with Ms Y lacked clarity which caused upset to her. The Council has apologised to Ms X and Ms Y for the confusion and upset caused which is an appropriate remedy. I have therefore completed my investigation

The complaint

  1. Ms X complains on behalf of Ms Y. Ms X complains:
      1. The Council has wrongly included discrepancies in Ms Y’s direct payment account which she considers arose in 2014 because the Council did not properly advise her on how to use her direct payment account. Ms Y says the Council has carried forward these discrepancies each year which has caused a debt on the direct payment account which the Council requires her to repay from her personal bank account.
      2. The Council wrongly withdrew its offer to arrange an independent audit of Ms Y’s direct payment account. Ms Y considers the independent audit would have resolved her concerns about discrepancies on her direct payment account and this opportunity has now been denied.
      3. The Council wrongly considers there is a surplus in Ms Y’s direct payment account.

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What I have investigated

  1. I have investigated complaints b) and c). I have not investigated complaint a) for the reasons set out at the end of this statement.

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The Ombudsman’s role and powers

  1. 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)
  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
  • the fault has not caused injustice to the person who complained, or
  • the injustice is not significant enough to justify our involvement, or

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

  1. 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

  1. I have:
  • Considered the complaint and the information provided by Ms Y;
  • Discussed the issues with Ms X;
  • Made enquiries of the Council and considered the information provided;
  • Invited Ms X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

Background

  1. Ms Y has a personal budget and receives direct payments to pay for her care. In 2016 the Council carried out an audit of Ms Y’s direct payment account for the period March 2014 to January 2016 and raised a number of concerns with how Ms Y was using the account. The Council carried out further audits in 2016, 2017 and 2018 which also raised concerns. Ms Y considered she was owed funds from the direct payment account. The Council considered Ms Y had underpaid her client contribution which she should repay from her bank account. Ms Y considers the Council did not provide her with clear instructions on how to use her direct payments when she first received them in 2014 and disputes the findings of the audits.

The independent audit

  1. In December 2018 officer 1, a manager, wrote to Ms Y setting out the discrepancies found by the audit of Ms Y’s direct payment account from March 2014 to January 2018. Officer 1 proposed that the Council pay for an independent person to audit Ms Y’s direct payment account to resolve Ms Y’s dispute. Officer 1 said Ms Y could choose the auditor, provided they from a recognised firm or the Council could find an auditor.
  2. Following a meeting requested by Ms Y, officer 1 wrote to her explaining she was proposing the independent audit as Ms Y was in dispute with the Council about the accuracy of the audit undertaken. Officer 1 confirmed the Council was willing to identify a company or Ms Y could identify a suitably qualified person or company. The Council said it would need a quotation for the work and it must approve the funding.
  3. Ms X, Ms Y’s advocate, contacted the Council for more details on what the audit would cover and whether the Council would pay enablement hours to help Ms Y prepare the documentation.
  4. The Council approached two organisations to see if they could undertake the audit. One of the organisations advised they used a council whom I shall call council B. Council B agreed to undertake the audit. In March 2019 Ms X contacted the Council to ask a number of questions about the proposed auditors on Ms Y’s behalf. Ms Y requested to meet the auditors before the audit was undertaken to enable her to explain her position. I understand Ms Y was concerned the auditor would only consider information from the Council. The Council considered Ms Y’s questions indicated she was agreeing to council B carrying out the audit.
  5. The Council put Ms Y’s questions to the council B who confirmed it would be happy to meet Ms Y after the audit.
  6. Ms X and officer 2, Ms Y’s social worker contacted the Council to advise Ms Y had not, in fact, agreed to council B undertaking the audit. Ms Y did not want another council to undertake the audit as she did not consider them to independent. Ms Y provided a quote from her own identified auditor. The quotation was significantly higher than council B’s.
  7. Officer 1 responded. She said her interpretation of Ms X ‘s email setting out Ms Y’s questions about council B was that Ms Y had asked the Council to arrange the audit. Officer 1 also said given the audit would be paid for by public funds and she was satisfied council B would be able to offer an objective view, she would not increase the budget for the audit.
  8. Ms X sent a further email to the Council on Ms Y’s behalf. Ms Y wanted to know if she could meet the auditor from council B before the audit as it was vital for her to brief them. Ms X said Ms Y was not agreeing to the audit but these clarifications would allow her to make an informed choice.
  9. Officer 1 responded. She explained the agreement for Ms Y to appoint her own auditor was with the proviso that the Council would make the final decision based on value for money. Officer 1 reiterated that she could not agree to Ms Y’s suggested auditor as the quote was significantly more expensive and not proportionate to the situation. She also said the council B had confirmed they would be happy to discuss the audit with Ms Y if there are any issues arising. Officer 1 asked Ms X to confirm if Ms Y would proceed or the Council would issue a statement for Ms Y’s direct payments based on the information received to date.
  10. Ms X sent an email to officer 1. She advised Ms Y had agreed to proceed provided she could meet with council B before the audit as she considered meeting afterwards would not give her fair input into the process.
  11. Ms X, Ms Y and officer 2 met to discuss the audit. The recorded outcome was for Ms Y to meet council B.
  12. The Council’s records show it contacted council B by telephone and email in September 2019. The purpose of the contact was to clarify whether the auditor would agree to Ms Y’s request to meet with them before the audit. Council B replied and said:

“Unfortunately we are unable to comply with the request to meet the client before the audit is carried out. I am therefore sorry that we will not be able to assist you with the audit in this instance.”

  1. The Council’s records show council B declined to meet with Ms Y before the audit as it considered it would be inappropriate to meet with either party before hand as it could prejudice the independence of the audit.
  2. The Council’s records also show officers did not understand council B had withdrawn from the audit as a whole. They thought council B had just declined to meet with Ms Y in advance of the audit. The Council informed Ms X that council B would not meet with Ms Y and asked her to confirm if she wanted to proceed.
  3. In late October 2019 and following further contact between council B and officer 2, council B confirmed it would not carry out the audit as it did not have the capacity to do so. Officer 2 notified Ms Y in November 2019 of council B’s decision.
  4. Ms X made a complaint to the Council on behalf of Ms Y. She raised a number of issues including that it had taken the Council seven months to tell her council B would not meet with her for the audit which caused distress and worry to her. Ms Y wanted the Council to allow her to appoint an auditor to carry out the independent audit or for the Council to write off the debt on her direct payment account. She would then be happy to discuss the running of her account to ensure discrepancies did not recur.
  5. The Council acknowledged it had raised Ms Y’s expectations about a pre meeting with council B and officer 2 had not recognised that council B had withdrawn from the audit. The Council apologised for the confusion and any upset caused.
  6. The Council refused to arrange a further independent audit. It said:

“However, we do not consider that making further efforts to arrange an independent audit or to resolve the (now) historical issues would be proportionate – this is based on our experiences working with Ms Y over the past several years on this issue. In addition, it appears to us that the audits we have carried out have been thorough and fair to all parties although we acknowledge that Ms Y continues to dispute the findings.”

  1. The Council then wrote to Ms Y asking her to repay the underpaid client contributions from her personal bank account rather than the direct payment account.
  2. In October 2020 the Council wrote to Ms Y setting out the findings of an audit carried out between March 2019 and June 2020. The Council considered there were surplus funds of £2000 in her direct payment account and it asked her to repay this. The Council has said the surplus was caused as Ms Y did not use all the care hours she was entitled to. Ms Y has repaid the surplus funds.

Analysis

Decision to withdraw the offer of an independent audit

  1. On balance, I do not consider the Council to be fault for withdrawing the offer of an independent audit after council B declined to carry out the audit. The Council offered the independent audit to Ms Y as a means of resolving her complaint about the accuracy of its audits. The Council did not have an obligation to arrange an independent audit and, so, it did not have an obligation to arrange a further audit when council B withdrew. The Council explained why it would not arrange a further audit in its response to Ms Y’s complaint. So the Council is not at fault for declining to arrange a further independent audit when council B withdrew. This was a decision it was entitled to take.
  2. The Council is not at fault for declining Ms Y’s choice of auditor. The Council agreed Ms Y could choose her own auditor subject to its approval. The Council refused Ms Y’s choice as the quotation was significantly higher than council B’s. I am mindful that the quote provided by Ms Y’s auditor was an illustration and not the final quote. Ms Y also considers the Council’s decision was unfair as she was not given the chance to obtain a quote based on a specific number of hours. The illustration which included the hourly rates was much higher that council B’s quote and the Council was entitled to consider its resources when appointing the auditor. So, its decision to decline Ms Y’s choice of auditor does not amount to fault.
  3. I note Ms Y’s concerns that the Council sought quotes before it offered the independent audit and before she had submitted her quote. This does not amount to fault. It was appropriate for the Council to obtain quotes to see if an independent audit was feasible and to facilitate the audit if Ms Y’s quote was not acceptable.
  4. Ms Y considers an audit by council B would not have been impartial. I do not consider this to be the case. The audit was to be carried out by accountants who have professional standards to abide by.
  5. The Council’s communication with Ms X and Ms Y about the audit lacked clarity. The Council did not clearly explain to Ms Y that council B had only offered a post audit meeting if issues arose and it did not know if council B would agree to a pre meeting. Officers were also under the misapprehension that council B had just declined to meet Ms Y rather than it had declined to carry out the audit. This caused a delay in notifying Ms Y that council B had withdrawn. The lack of clear communication will have caused some distress to Ms Y. In its response to Ms Y’s complaint the Council has acknowledged the lack of clear communication caused confusion and upset to Ms Y and apologised. I consider this to be an appropriate remedy.

Surplus in Ms Y’s direct payment account

  1. Ms Y has repaid the surplus funds so the matter is resolved.

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Final decision

  1. The Council is not at fault for declining to offer a further independent audit to Ms Y. The Council is at fault as its communication with Ms Y lacked clarity which caused upset to her. The Council has apologised for the confusion and upset caused which is an appropriate remedy. I have therefore completed my investigation.

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Parts of the complaint that I did not investigate

  1. I have not investigated complaint a). This is because we normally expect people to make a complaint to us within 12 months of when they became aware of the complaint. Ms X would have been aware of her complaint as early as 2016. I have taken account of Ms X’s reasons why she did not make a complaint sooner, including her periods of ill health and hospitalisation, but I consider she could have made a complaint earlier. Furthermore, I do not consider I could reliably investigate how the Council dealt with Ms X’s direct payment accounts from 2014 due to the passage of time.
  2. I have also not investigated Ms Y’s complaint that the Council asked her to repay the debt on her direct payment account from her personal bank account. This is not separable from how the Council has dealt with Ms Y’s direct payment accounts from 2014 onwards which, as explained above, I am not investigating due to the passage of time.

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Investigator's decision on behalf of the Ombudsman

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