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Cumbria County Council (20 013 483)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 31 Aug 2021

The Ombudsman's final decision:

Summary: Ms X complained the Council reclaimed unspent direct payments it provided to her as her mother’s carer. The Council was not at fault for reclaiming the unspent funds. It was at fault for not advising Ms X it intended to do this and for not giving her four weeks’ notice in line with its terms and conditions. The Council has agreed to make a payment to Ms X to acknowledge the frustration caused. It has also agreed to take action to prevent a recurrence of the fault.

The complaint

  1. Ms X complained the Council unfairly reclaimed unspent direct payments she was given as her late mother Mrs Y’s carer, which she was unable to use due to her late mother’s deteriorating health and due to the restrictions imposed by the COVID-19 pandemic. It also failed to notify her when the direct payment account was closed. This means she missed out on money which was meant to support her as a carer.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. 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 information provided by Ms X and have discussed the complaint with her on the telephone. I have considered the Council’s response to my enquiries and our published Guidance on Remedies.
  2. I gave Ms X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

  1. Where an individual provides or intends to provide care for another adult and it appears the carer may have any needs for support, local authorities must carry out a carer’s assessment. Carers’ assessments must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult. (Care and Support Statutory Guidance 2014)
  2. The carer’s personal budget must be an amount that enables the carer to meet their needs to continue to fulfil their caring role. It must also consider what the carer wishes to achieve in their day to day life. Part of the planning process should be to agree the manner in which the carer will use the personal budget to meet his or her needs. (Care and Support Statutory Guidance 2014)
  3. Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs.

What happened

  1. Ms X provided care and support to her mother Mrs Y. During 2018/19 Ms X received a personal budget as Mrs Y’s carer to meet her own needs as her mother’s carer. The payment was made using a pre-paid card. In August 2018 she signed the Council’s statement of conditions for direct payments. This set out that either party could decide to end the agreement with four weeks’ notice. It set out that where funds on the pre-payment card have not been used ‘payments already made or part of them will at the Council’s discretion be repayable to the Council’.
  2. The cardholder information form issued to Ms X with the pre-paid card set out that ‘the customer can monitor the card account in real time by setting up an online account. Using the cardholder control portal the customer can check the balance of the account, view an account statement and list all authorised transactions pertaining to each of the cards’. It goes on to say ‘if the customer is unable to access online account management they can choose to manage their Account using the PFS [Prepaid Financial contact Services] Customer Service Centre. By telephoning the PFS call centre they can get up to date account information, including balance, transactions, pay bills and update account information’.
  3. During 2019 Ms X regularly used the card to pay for treatments.
  4. In November 2019 a carer support charity, on behalf the Council, assessed Ms X’s needs as her mother’s carer. Ms X sought support to fund a gym membership to help her maintain her own health plus payments for monthly treatments to help her with her own physical health conditions and mental well-being.
  5. The Council also agreed to fund a weekend break for Ms X to give her a break from her caring role. In January 2020 the Council paid £923 into Ms X’s direct payment account. It sent her the information about the terms and conditions of a direct payment account.
  6. Ms X paid for treatments in January and February 2020 then again once COVID-19 restrictions allowed, in August, September and November 2020.
  7. In late September 2020 Mrs Y died. Ms X tried to use the card again in December 2020 but it was declined. She contacted the Council. It advised her it had closed the card account in November 2020 as Mrs Y had died. Ms X explained she had not had the opportunity to use the budget as she could not travel and things were closed during lockdown. She said the Council had not told her when it paid the money into the account or when it had claimed the money back. The Council considered Ms X’s request but decided not to reinstate the direct payment.
  8. In January 2021 Ms X complained to the Council. The Council’s complaint investigation report set out:
    • there were no entries demonstrating it had informed Ms X it had closed the case or that it would reclaim the surplus in the account .
    • It should have given Ms X 4 weeks’ notice of the account ending in line with its terms and conditions.
    • There was a lack of guidance regarding the closure of a carer’s direct payment and how/when it would reclaim any unspent budget following the death of the cared for person.
    • Had a conversation taken place at the time, in some cases not all the direct payment would be reclaimed and an amount of the personal budget would have been agreed to allow the carer to continue to meet the needs identified in their support plan prior to the account being closed.
  9. The Council accepted Ms X was not able to use all the budget due to the COVID-19 constraints. However, it considered Ms X could have requested a review of the support plan to review how her needs could have been met differently. It set out that had it followed the agreed procedure it would have given Ms X four weeks’ notice. In which case it might have agreed a negotiated further amount of direct payment to spend. It offered to pay Ms X £250 for the undue stress, inconvenience and frustration caused by the Council’s actions.
  10. Ms X remained unhappy and complained to the Ombudsman.

Findings

  1. A carer’s budget is provided to meet the needs of a carer which arise as a consequence of them providing care to the cared for person. The Council provided Ms X with a direct payment to meet her needs as a carer. Ms X was not able to fully use the budget, but this was due to constraints imposed by the COVID-19 pandemic, not due to fault by the Council. It was also open to Ms X to contact the Council to explore other ways of using the budget at the time.
  2. The terms and conditions of the direct payment meant the Council was entitled to reclaim unspent payments following the closure of the account. The Council considered it was not appropriate to reinstate the budget as Ms X was no longer providing care for her mother. There was no fault in the way it reached this decision.
  3. However, following Mrs Y’s death, the Council reclaimed the unspent budget without advising Ms X it would do so and without giving her four weeks’ notice as per its terms and conditions. This was fault.
  4. Through its complaint investigation the Council accepted and acknowledged the faults and offered Ms X a payment of £250 for the stress, inconvenience and frustration this caused. The payment amount is in line with our published Guidance on Remedies for distress and frustration and is appropriate.
  5. The Council should also review its procedures to ensure it learns from this complaint to future faults causing injustice to others.

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Agreed action

  1. As recommended in its complaint investigation, within one month of the final decision the Council has agreed to pay Ms X £250 to acknowledge the undue stress, inconvenience and frustration caused.
  2. Within two months of the final decision the Council has agreed to:
    • Remind staff of the need to give four weeks’ notice and to advise of any potential reclaim of funds before closing direct payment accounts.
    • Develop guidance for staff on when unspent budget will be reclaimed following the closure of a carer’s direct payment following the death of the cared for person.

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Final decision

  1. I have completed my investigation. There is evidence of fault causing injustice for which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman

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