Summary: We cannot investigate this complaint that poor advice by the Council caused the complainant to receive Carers Allowance she was not entitled to. This is because the complainant appealed to the tribunal. We will not investigate the complaint about a reduction in a direct payment in 2014 because it is a late complaint.

The complaint

1. The complainant, whom I refer to as Mrs X, says the Council gave her incorrect advice which led to a £28,000 overpayment of Carers Allowance. Mrs X wanted the Council to repay the overpayment to the Department for Work and Pensions (DWP). Mrs X also says the Council reduced her care hours in 2016 and did not tell her. Mrs X wants the Council to reinstate those hours and make a back payment.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
4. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

5. I read the complaint and the Council’s responses. I considered comments Mrs X made in reply to a draft of this decision.

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What I found

What happened

6. Mrs X has been a carer for many years. She initially cared for a child and received foster payments. When the child (Mr Y) became an adult in 2011 the foster payments stopped and Mr Y received direct payments. The direct payments are used to employ Mrs X as Mr Y’s carer.
7. Mrs X says that when she was a foster carer the Council told her to apply for Carers Allowance. Mrs X says she was not involved in the claim and knew nothing about benefits. Mrs X received Carers Allowance until 2019 when she received a call from the DWP to say she is not entitled to it because she receives direct payments. The DWP asked Mrs X to repay £28,000. Mrs X appealed against this decision to the tribunal. The tribunal decided she does not have to repay any of the money.
8. Mrs X says that in 2016 the Council reduced Mr Y’s care package by 18.5 hours a week and did not tell her. The Council, however, says it reviewed Mr Y’s direct payments in 2014 because £5000 had built up in his direct payment account. The Council says Mrs X was involved in the review and was sent a copy of the review in 2014. The Council said Mrs X subsequently asked for an increase in the hours but the Council did not agree.
9. Mrs X says she made lots of verbal complaints about the reduction in the hours but, getting no resolution, made a written complaint in 2020 when she also complained about the benefit overpayment. The Council has checked and it has no record of Mrs X making any form of complaint about the direct payment between 2016 and 2020.
10. Mrs X wanted the Council to repay the money for the Carers Allowance to the DWP. This goal has been superseded by the tribunal’s decision that she does not have to repay the overpayment. Mrs X also wants the Council to reinstate the 18.5 hours a week of direct payments and make a back payment.

Assessment

11. I will not start an investigation for the following reasons.
12. The law says we cannot investigate any matter that is the subject of an appeal to the tribunal. Mrs X appealed to the tribunal about the overpayment which means I have no power to investigate this issue.
13. I will not investigate the complaint about the reduction in hours because it is a late complaint. The payment was reduced in 2014 and, even though Mrs X says the Council did not tell her, it would have been apparent from the reduction in the money received. Mrs X has confirmed she was aware of the reduction in 2016 and, although she says she made unsuccessful verbal complaints, the Council has no record of this. Mrs X could have complained, in writing, to the Council in 2014 or 2016 and then complained to us promptly if she was unhappy with the response. But, she did not complain to us until 2021. And, while the Council took a year to respond to her complaint, even without that delay, her complaint to us would still have been four years old. I have not seen there was anything to have prevented Mrs X from complaining to us within 12 months of becoming aware of the reduction in hours.

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Final decision

14. I cannot start an investigation because Mrs X appealed to the tribunal and because part of the complaint is late.

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Investigator's decision on behalf of the Ombudsman