The Ombudsman's final decision:
Summary: Mrs X complained about the Council’s handling of her husband, Mr Y’s direct payments between 2015 and 2018. This resulted in the Council issuing them an invoice for £6879 for unaccounted and unauthorised spending of the direct payments. The Council was at fault for failing to monitor, audit and provide support to Mrs X and Mr Y on their spending of the direct payments. It was also at fault for failing to keep adequate records. The Council agreed to apologise to Mrs X and Mr Y for the distress and uncertainty this caused and reduce the outstanding debt owed.
- Mrs X complained about the Council’s handling of her husband, Mr Y’s, direct payments and care and support. Mrs X complained the Council:
- Has unfairly required them to repay £6,879.71 in unauthorised and unaccounted for spending of direct payments between 2015 and 2018.
- Failed to provide any support or help in managing and administering Mr Y’s direct payments.
- Withdrew Mr Y’s direct payments in 2018.
- Committed a data breach by calling her daughter, Miss F, and discussing matters related to Mr Y’s health and finances with her.
The Ombudsman’s role and powers
- 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)
- We normally expect someone to refer the matter to the Information Commissioner’s Office (ICO) if they have a complaint about data protection, including disclosing information in error, and the accuracy of information held. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
- 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)
How I considered this complaint
- I spoke to Mrs X about her complaint and considered the information she provided.
- I considered the Council’s response to my enquiry letter.
- I considered relevant law and guidance including the Care Act 2014, the Care and Support Statutory Guidance, and Council policy and guidance.
- Mrs X and the Council had an opportunity to comment on my draft decision. I considered comments before I made a final decision.
What I found
Assessment of needs
- Sections 9 and 10 of the Care Act 2014 say councils must assess the needs of an adult who appears to need care and support. The council must do this regardless of whether it thinks the person has eligible needs and regardless of the person's finances. Following an assessment, the council must decide which needs are eligible for their support. If the council provides support, it must produce a written care plan.
- The Care and Support (Eligibility Criteria) Regulations 2014 set out the eligibility threshold for adults with care and support needs. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. An adult’s needs are only eligible when they meet all three of the following conditions:
- The needs must arise from or be related to a physical or mental impairment or illness.
- Because of the needs, the adult must be unable to achieve two or more of the following specified outcomes:
- Managing and maintaining nutrition;
- Maintaining personal hygiene;
- Managing toilet needs;
- Being appropriately clothed;
- Being able to make use of the adult’s home safely;
- Maintaining a habitable home environment;
- Developing and maintaining family or other personal relationships;
- Accessing and engaging in work, training, education or volunteering;
- Making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
- Carrying out any caring responsibilities the adult has for a child.
- Because of not achieving these outcomes, there is likely to be a significant impact on the adult’s well-being.
- Direct payments are cash payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs. The council has a key role in ensuring that people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.
- The Care and Support Statutory Guidance says the council must be satisfied that the direct payment is being used to meet the care and support needs set out in the plan and councils should therefore have systems in place to proportionally monitor direct payment usage to ensure effective use of public money.
- The Care and Support (Direct Payments) Regulations 2014 set out that the council must review the making of direct payments initially within 6 months, and thereafter every 12 months. It must not require information to be provided more often and in more detail than is reasonably required for the council to know that making a direct payment is still an appropriate way of meeting the needs, and that conditions upon which it is made are met. The outcome of the review should be written down, and a copy given to all parties. Where there are issues that require resolving, the resolution method should be agreed with all parties involved, as far as is reasonably practicable.
- Whatever arrangements are made it is important that the council and direct payment holder are both clear as to their responsibilities to avoid any disputes at a sensitive time for family and carers. Decisions made should be recorded in care plans.
The Council’s direct payments scheme policy
- The Council’s policy sets out information about both recipients and its responsibilities and duties with regards to direct payments.
- The policy says recipients of direct payments should keep proper financial records of all spending of direct payments. This includes bank statements, receipts and invoices.
- The policy also sets out the Council’s responsibilities to recipients of direct payments. It says the Council will ensure full support and information is given to recipients to prepare them to use direct payments and how to keep proper financial records. It says it will carry out initial six-weekly reviews and annually thereafter or whenever either party thinks it necessary.
- Mr Y has disabilities which mainly effect his mobility. He also has early onset dementia. His wife, Mrs X, is his main carer. In 2012 Mr Y started receiving direct payments which were used to meet his eligible care needs. The direct payment agreement signed by Mrs X and Mr Y sets out the amount of money Mr Y would receive and also Mrs X and Mr Y’s responsibilities. The agreement stated direct payments should only be spent on services for assessed needs identified in the support plan. It stated Mrs X and Mr Y should keep proper financial records and receipts of all spending of the direct payments.
- The Council was unable to provide us with a copy of Mr Y’s initial needs assessment and care and support plan. Therefore, I cannot say what his eligible needs were at the time.
- Records show the Council reassessed Mr Y’s needs during 2015. The reassessment set out Mr Y’s eligible needs. It mentioned Mr Y would like to continue receiving a rolling payment of £700 per year to holiday at a disabled access caravan. It set out that Mr Y’s direct payments were to provide daily support to meet his needs including to address social isolation, to allow him to engage in social activities and to attend an adapted caravan for a holiday each year.
- Records show that between 2015 and 2016 the Council sent monthly letters to Mrs X and Mr Y requesting financial returns of how they had spent the direct payments. There is no evidence Mrs X or Mr Y responded to these letters. The Council continued sending regular requests until 2018 when it carried out a reassessment of Mr Y’s needs. It concluded at this time that Mr Y only had one eligible need and therefore no longer qualified for care and support. The Council wrote to Mr Y and explained as a result the direct payment he received would end.
- Records show the Council wrote to Mr Y in September 2018 asking him to return all unspent direct payments and send in financial records of spending back to August 2016. The Council sent a reminder letter for this information in November 2018.
- In early 2019 the Council wrote to Mr Y. It reminded him of the responsibility to keep proper financial records of how the direct payments had been spent. The Council said it had written to Mr Y on several occasions to request financial returns but had received no response. The Council said therefore it was unable to complete an audit of Mr Y’s spending. It said Mrs X had last completed a financial return in August 2016. The Council therefore enclosed an invoice for £40,494.23 for unaccounted for direct payments. It said it would start court proceedings if it received no response.
- Mrs X complained to the Council following the invoice. Mrs X said she was unhappy with the Council’s handling of the matter. She said Mr Y had gone from £1000 per month direct payments to nothing following the reassessment in 2018 which she said she disputed the outcome of. Mrs X said she submitted statements to the Council however the Council said it had not received them. Mrs X said she called someone at the Council to discuss the matter but was accused of theft and fraud. Mrs X asked the Council to place a hold on any action until it had dealt with her complaint.
- The Council responded to Mrs X’s complaint and sent Mrs X its investigation report. The Council found it wrote to Mr Y in July 2018 following the termination of the direct payments however it received no response. It sent another letter in November 2018 and February 2019 but again did not receive a response. The Council said that as it had received no direct payment returns, statements or receipts since 2017 it did not know what Mrs X and Mr Y had spent the money on. It therefore raised an invoice to recover £40,494.23. The Council said it would consider any financial information Mrs X sent it and then review the required payment. The Council said it had sent reminders to the correct address therefore it disputed Mrs X’s assertion that she had not received any correspondence. It confirmed it had placed the matter on hold to give Mrs X the opportunity to gather and provide the required financial information. The adjudication officer agreed with the investigating officer’s report into Mrs X’s complaint.
- Records show Mrs X gathered financial information about how Mr Y’s direct payments had been spent and sent it to the Council. Following this the Council reduced its invoice to £6879.17 which it required Mrs X and Mr Y to repay. The Council said £1656.35 was unaccounted for cash withdrawals and £5223.36 was for overspending on annual holidays.
- Mrs X contacted the Council about the holidays which she provided full receipts and invoices for. She said there was not any cap in place on how she could use Mr Y’s direct payments. Mrs X said the payments were used for either care or respite which met his eligible needs at the time. The Council responded and said the formal assessment for Mr Y identified that he could use £700 of direct payments per annual holiday. It said this decision was recorded on its case management system.
- Mrs X remained unhappy and complained to us.
- Mrs X further complained about a data breach when in June 2019 the Council called Mrs X and Mr Y’s daughter Miss F by mistake and proceeded to discuss Mrs X’s ongoing complaint and Mr Y’s circumstances with her. Miss F complained to the Council about the matter and said the call had caused her distress. She said the Council had no idea it was talking to Miss F because it did not ask any security questions. The Council investigated and decided the Council should consider implementing guidance on security questions to ask individuals prior to discussing matters on the telephone. It said the matter did not meet the criteria to refer it to the ICO.
The Council’s decision to end Mr Y’s direct payments in 2018.
- We are not an appeal body and we cannot criticise a professional decision or opinion unless there was fault in the way it was made. The Council carried out a reassessment of Mr Y’s needs in 2018 and decided he only had one eligible care need and therefore was no longer eligible for care and support. The reassessment of Mr Y’s needs considered his views and Mrs X was present. The Council carried out the reassessment in line with relevant legislation and guidance. There was no fault in how the Council decided Mr Y was no longer eligible for support under the Care Act and therefore no longer entitled to direct payments. If Mrs X believes Mr Y’s needs have changed since 2018, she is entitled to ask the Council to carry out a fresh assessment of his needs.
The Council’s handling and administration of Mr Y’s direct payments
- Both statutory guidance and the Council’s own policy outline the Council’s duties in supporting, monitoring and having oversight of Mrs X and Mr Y’s use of direct payments. Mrs X did not complete any financial returns from 2015 onwards which the Council was aware of. There is no evidence the Council acted on this other than to send repeated request for invoices. There are also no records which show the Council carried out any reviews or audits during this period. The Council was at fault for failing to properly monitor and audit Mrs X and Mr Y’s spending of direct payments between 2015 and 2018. Had it done so, it would have prevented Mr Y’s unaccounted for direct payments reaching over £40,000.
The Council’s request for repayment of £6879.17 of unaccounted for and unauthorised use of direct payments
- Mrs X was aware of her responsibility to keep proper records of the spending of Mr Y’s direct payments and historically failed to do so. The Council was entitled to ask for the evidence to support how the direct payments were spent. When Mrs X provided this it appropriately reduced the figure to £6879.17.
- Of the above figure, £1656.35 is unaccounted for cash withdrawals. Councils must ensure public funds are spent appropriately. The Council must be satisfied that direct payments are used to support the eligible needs as outlined in Mr Y’s care and support plan. Without receipts or records of the cash spending it leaves uncertainty over how Mrs X and Mr Y used the cash. Therefore, the Council was not at fault for reclaiming this figure.
- The Council is reclaiming the remaining £5223.36 because it says Mrs X and Mr Y used the money for annual holidays which were outside the agreed limit of £700. The Council said to Mrs X and Mr Y and to us that the formal assessment and its own case records show it agreed only £700 for spending on annual holidays. However, the Council was unable to provide me with evidence to support this assertion. Furthermore, it was unable to provide me with Mr Y’s needs assessments or care and support plans prior to 2015. Mr Y’s care needs reassessment in 2015 gives a figure of £700 per year for disabled access to a caravan. However, it does not set out any specifics or limitations about how the money should be used for holidays.
- Direct payments allow for independence and flexibility. The lack of appropriate case records and care and support plans is fault and leaves uncertainty over what, if anything, the Council agreed as appropriate use of direct payments for holidays and respite for Mrs X. As explained above, had the Council had appropriate systems in place to manage and monitor Mrs X and Mr Y’s spending of the direct payments it is likely it could have resolved this much earlier and could have prevented some of this spending. It is not appropriate in the circumstances to ask Mrs X to repay all of the £5223.36 spent on respite and holidays between 2015 and 2018. The recommendation takes into account Mrs X and Mr Y’s historic failure to keep adequate records and make appropriate and timely financial returns.
Data protection breach
- Records show the Council called Miss F and believing it was speaking to her mother, Mrs X, disclosed information about the ongoing complaint and Mr Y’s health and financial situation to her. That was fault and it caused Miss F distress. The Council has investigated and recommended the relevant department implements security questions to ensure officers are speaking to the correct person when making external telephone calls. There is nothing further I could add which would lead to a different outcome however I have made a recommendation to remedy the distress caused to Miss F. It is open to Mrs X and Miss F to report the breach to the ICO if they wish.
- Within one month of the final decision the Council agreed to:
- revise the debt owed to the Council by Mr Y by reducing the outstanding amount by £2500 to remedy the uncertainty caused by Council’s poor record keeping, lack of support and inadequate monitoring between 2015 and 2018.
- Write to Miss F and apologise for the distress caused when the Council committed a data breach by disclosing information about Mr Y to her on the telephone without proper security questions in place.
- I completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.
Investigator's decision on behalf of the Ombudsman