Summary: Mrs Y complained about the way the Council dealt with Mr X’s direct payments, and its complaints handling. The Ombudsman has found fault by the Council, causing injustice. The Council has agreed to remedy this by apologising, making payments to reflect distress, time and trouble, and contacting Mrs Y to address any outstanding concerns about the direct payment account.

The complaint

1. The complainant, who I am calling Mr X, is represented by his mother, who I am calling Mrs Y.
2. Mrs Y complained about the way the Council dealt with Mr X’s direct payments and its complaint handling. She says the Council:

• wrongly stopped Mr X’s direct payments from 1 March 2020 and delayed their restart
• failed to provide support and guidance about the employment of Mr X’s personal assistant and the availability of the furlough scheme
• failed to carry out a proper reconciliation of Mr X’s direct payment account and client contributions
• delayed responding to her complaint

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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 spoke to Mrs Y, made enquiries of the Council and read the information Mrs Y and the Council provided about the complaint
6. I invited Mrs Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

Relevant law and guidance

The First-tierTribunal (Special Educational Needs and Disability)

7. This tribunal considers appeals against council decisions regarding special educational needs. We refer to this as the SEND Tribunal in this decision statement.

Charging for care

8. The Care Act 2014 allows councils to charge people for the care they receive. They must assess a person’s finances to decide what contribution they should make to their personal care budget. The Council calls this the “client contribution”.

Direct payment

9. Councils may make payment of some or all of the personal care budget directly to a person so they may arrange and pay for their own care.
10. Where a person uses a direct payment to employ a personal assistant, they become an employer with responsibility for PAYE, redundancy, recruitment etc.
11. Councils should take “all reasonable steps” to provide support to help people manage a direct payment. (Care and support statutory guidance updated 27 August 2021, chapter 12). They often have arrangements with other organisations to provide this service, and support with employing a personal assistant.
12. The Council uses two organisations, one of which is People Plus, who can offer free support with employing a person’s own staff. People Plus also offers additional services a person can chose to buy, such as a payroll service. Details about this support and how to contact People Plus and the other organisation are published on the Council’s website.
13. The Council also published on its website links to government advice “Coronavirus guidance for people receiving direct payments” and an “employers guide” for people who employ personal assistants produced by Skills for Care.

What happened

14. I have set out a summary of the key events below. It is not meant to show everything that happened.
15. Mr X is a young adult with disabilities in need of care and support. He has been in receipt of a direct payment (DP) for a number of years. Mrs Y manages these payments on his behalf.

Background

16. Mr X attended the school named in his Education, Health and Care Plan (EHC Plan) until the age of 19. Mrs Y appealed to the SEND Tribunal in 2019 against the college named by the Council in Mr X’s EHC Plan as his new placement. The Council agreed a DP for Mr X’s care and support for the period 1 September 2019 to 29 February 2020, pending the appeal outcome.
17. The DP included 12 hours of support for Mr X from a personal assistant (PA), two days attendance at his former school’s hub centre, and six hours of agency support. The agency support option was not put in place.
18. Mr X started receiving Universal Credit after leaving school. In November 2019 his client contribution was assessed as £64 a week.
19. In January 2020 the SEND Tribunal decided Mrs Y’s preferred choice of college should be named as Mr X’s new placement. It took some time for the Council to make the arrangements for Mr X to start there, as a weekly boarder.
20. Mr X was still living at home on 1 March. The DP period, ending on 29 February was not extended by the Council and no further DP was made after this date.
21. Mr X paid client contributions of £250 and £240 on 22 February and 17 March.
22. Mr X stopped receiving support from his PA at the start of the COVID-19 pandemic in March, because she was shielding. As Mr X was also vulnerable, Mrs Y decided not to employ any replacement carers to support him for the time being. From March, Mr X’s care and support needs were met solely by Mrs Y.
23. On 30 March Mrs Y contacted People Plus to discuss what she should do about the PA. People Plus say they told Mrs Y they were not sure what was happening about any money from HMRC. Council payments would continue and if the PA was on a fixed weekly contract, they should pay the PA as normal. And they should also continue paying Mr X’s contribution until the Council advised otherwise. Mrs Y says she was not told about the contributions. She asked only about the furlough scheme and said she would use this as the PA was shielding.
24. Mrs Y’s understanding was she should continue to pay the PA 80% of her wages under the furlough scheme. She told the Council this was what she would do.
25. In April Mrs Y complained to the Council the DP had stopped.
26. The Council replied on 22 May. It said the DP had stopped in error. It had not picked up on the need to extend the dates because Mr X was still at home. It apologised for this.
27. The Council also said it would ask for the DP to be reinstated but would like to discuss the options for supporting Mr X’s independence and care needs in view of the impact of the COVID 19 lockdown. It noted the school hub was closed and Mr X’s PA was not currently providing support.
28. Mrs Y and the Council had discussions about Mr X’s support needs and DP, but these appear to have focussed on the support he would need once he started at his new placement. The only request Mrs Y appears to have made was to be able to use the unspent DP in the account to buy a lightweight portable wheelchair. The Council considered the request and decided it could not agree to the DP being used in this way.
29. Mrs Y and the Council continued to correspond about the DP. Mrs Y wanted to recruit a second PA but was concerned the Council might withdraw the surplus balance from the account and there would be a delay in reinstating the DP. The Council told Mrs Y it was not currently recalling surplus balances.
30. Mrs Y asked the Council to provide her with a reconciliation of the DP account. In its response to this request in September, the Council:

• provided details of the DP agreed for the period from 1 March to 16 August. This had not been paid as yet. The last DP payment to the account was made in January 2020.
• said the contributions due from Mr X over the same period were £1,565.
• said Mrs Y had used the account during the period from 2 June to 28 August to make the PA’s furlough payments of £864.
• suggested options for reconciling the account. On the basis the DP account was used for the period to 23 May. Mr X should pay his contributions, and the Council make the DP, up to that date. The account could then be suspended until a new service agreement was put in place for Mr X’s start at the new school.

31. Mrs Y was unhappy with the response. She felt it was unfair to require Mr X to pay contributions for care he had not received. She remained concerned about losing the surplus balance, to which Mr X had already contributed, and there would be no new DP in place when they found another PA.
32. Mrs Y told the Council they would not use the account for the foreseeable future because they had not yet found another PA. She also said she had let the first PA go because Mr X could not afford to pay her on top of the unpaid contributions the Council said he owed.
33. Mrs Y had contacted the Council with a query about the furlough scheme in July. The Council referred this to People Plus. In October People Plus confirmed eligibility for the scheme was subject to registration by 30 June and claim submission by 31 July. It was too late now for Mrs Y to register the PA for the scheme.
34. Mrs Y complained to the Council on 9 October. She said it had failed to provide her with guidance about how to deal with the PA and this had impacted Mr X’s finances. She would repay the amount paid to the PA and refer her complaint to us. Mr X would not pay anything further until we had looked at the complaint.
35. Mrs Y brought her complaint to us on 10 October. We told her we had to give the Council the opportunity to respond to her complaint before we could investigate.

36. The Council responded in April 2021 and said:

• it apologised for the delay in providing this response, this was due in part to pressures dealing with the COVID-19 situation and work pressures within the complaints team
• It accepted there had been a number of service failings. Her messages had not always been replied to, or updates given and there had been a delay in providing the reconciliation she had asked for.
• the DP team had no record of Mrs Y asking it for guidance about the furlough scheme until 20 July. It advised her on 23 July to contact People Plus. It accepted there were missed opportunities for People Plus to have provided guidance about furlough. It offered to waive Mr X's outstanding contributions of £424 as recompense for this. This would leave him with a nil amount owed.

37. Mr X started at his new school in September 2020. Mrs Y has still not been able to recruit a new PA. No new service agreement or DP is in place as yet.

Analysis – was there fault by the Council causing injustice?

Mr X’s direct payments from 1 March 2020

38. The Council knew Mr X was still at home and had not yet started at his new school. It accepted in May 2020 it had failed to make provision to continue the DP after 29 February. This was fault by the Council, for which it has apologised. I do not consider this caused any significant injustice for the reasons explained below.
39. There was a surplus balance on the account as at 1 March, which Mrs Y was able to use to make necessary payments, even though there were no further DP after 29 February.
40. And because of COVID-19, and Mr X’s vulnerability, arrangements for his care and support had changed. He was no longer attending the hub, and as he was shielding, Mrs Y was providing his care without any paid support. I do not consider it was fault by the Council not to reinstate the DP at this stage, without first agreeing with Mrs Y how further payments could be used for Mr X’s support and care needs.

Guidance about the PA’s employment and the furlough scheme

41. I do not consider the Council was responsible for providing Mrs Y with guidance about the furlough scheme. My understanding is People Plus provided support to Mrs Y’s regarding any employment issues.
42. The Council published information on its website about where and how to get guidance about employment issues due to COVID-19. And when Mrs Y contacted it about the furlough scheme in July it referred her query to People Plus.
43. The Council was not at fault, in my view, regarding the provision of guidance to Mrs Y about the PA’s employment and furlough scheme.

Reconciliation of Mr X’s direct payment account and client contributions

44. I appreciate the period from March 2020 has been very difficult for Mrs Y. I understand, as Mr X had left school in July 2019 and not yet started his new placement, she had been Mr X’s primary carer for some time, even before the start of the COVID-19 pandemic. She was then faced with a situation where the paid support for which DP was provided was no longer available and had concerns about whether the DP would be reinstated, how she should deal with the PA’s employment and what would happen about Mr X’s contributions. And while this was going on, she was meeting all of Mr X’s care and support needs.
45. I do not consider the Council’s reconciliation of 4 September gave any clear explanation of the position with the DP account and Mr X’s contributions, or properly addressed Mrs Y’s understandable concerns. I consider this was fault by the Council.
46. I do not consider this fault stopped Mrs Y from keeping on the first PA, as there were surplus funds available in the account, or from recruiting another PA. The difficulty with this, I understand, is finding someone suitable.
47. But, in my view, the failure to properly address Mrs Y’s concerns about the DP account and Mr X’s contributions caused Mrs Y considerable worry and uncertainty about what the position would be when another PA was recruited. The Council did not offer to waive any outstanding contributions until April 2021, some six months after Mrs Y brought her complaint to us.

Complaint handling

48. Mrs Y made her complaint to the Council in October 2020. The Council did not provide its response until April 2021. I consider this was an unreasonable delay, and fault by the Council. This caused Mrs Y distress and uncertainty, and time and trouble pursing the complaint with us.
49. In addition to its apology in May 2020 for stopping the DP, I note the Council apologised in April 2021 for its delay in responding to her complaint and the accepted service failures.

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Agreed action

50. To remedy the injustice caused by the above faults, within four weeks from the date of our final decision the Council has agreed to:

• Apologise to Mrs Y for failing to properly address her concerns about the DP account and Mr X’s contributions.
• Pay Mrs Y £200 to reflect the distress, time and trouble this failure caused her.
• Pay Mrs Y £100 to reflect the distress, time and trouble caused by its delay in responding to her complaint.
• These figures are symbolic amounts based on the Ombudsman’s published guidance on remedies.
• Arrange for an experienced manager in its DP team to contact Mrs Y to address any outstanding concerns she has about the DP account, Mr X’s contributions, and the position going forward. And confirm the outcome of these discussions to us.

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Final decision

51. I have found fault by the Council causing injustice. I have completed my investigation on the basis the Council will take the above action as a suitable way to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman