Summary: There is no fault in the Council’s decision to stop Mr Y’s direct payments and seek repayment of unauthorised spends. However, it failed to offer Mr Y a commissioned service to meet his assessed needs.

The complaint

1. Ms X complains on behalf of her son, Mr Y. She complains the Council stopped Mr Y ’s direct payments without notice, and that it is seeking repayment of £1039

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The Ombudsman’s role and powers

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’. 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)
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

4. I have:

• considered the written complaint and discussed it with Ms X;
• considered the correspondence between Ms X and the Council, including the Council’s response to the complaint;
• made enquiries of the Council and considered the responses;
• taken account of relevant legislation;
• offered Ms X and the Council an opportunity to comment on a draft of this document, and considered the comments made.

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What I found

Relevant legislation

5. Direct payments are cash payments made by councils to people with assessed eligible care needs so that people or someone on his or her behalf can buy their own services as opposed to having services arranged by the council. The idea is to give the service user a measure of flexibility and choice that they might not otherwise have if services and goods were directly commissioned. Direct payments allow a service user to have control and choice over who provides the service and how the service is delivered. Councils are under a duty to make direct payment to service users who meet certain criteria and agree to receiving a direct payment.
6. Direct payments come from public funds. The council must monitor and review direct payments. In certain circumstances councils can discontinue direct payments as a way of arranging services and seek to recoup money allocated as a direct payment to the service user.
7. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
8. Where local authorities have determined that a person has any eligible needs, they must meet these needs. In order to decide how care a person’s eligible needs should be met, the Council must provide a care and support plan. The care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area.

Background

9. Mr Y is described as having mild/moderate learning disability. He has lived in supported living since 2015. He can access the community independently and visits Ms X at weekends. Due to concerns about his vulnerability, Mr Y chose to hand over his bank cards to his mother, Ms X.
10. In addition to his supported living placement Mr Y has been in receipt of direct payments to fund four hours support to access social activities, which Ms X manages on Mr Y’s behalf. I have had sight of the direct payment agreement, signed by Ms X on 14 February 2015.
11. The Council wrote to Ms X on 21 June 2019 to say it was conducting a routine audit of Mr Y’s direct payments and asked her to provide information relating to the management of the account, including bank statements. Ms X provided the Council with the requested information. She says the information was returned to her with no queries.
12. The Council wrote to Ms X again on 14 August 2019 to say the direct payment would be suspended from 22 August 2019 because of unauthorised spending from the account. The Council cited the purchase of an airline ticket, spending in coffee shops, a restaurant, and cash withdrawals. This amounted to £1039.52. The Council asked Ms X to repay the money and said it would accept installments.
13. Ms X says she has always spent the direct payments on activities for Mr Y, as was agreed in 2015, but in error, she used the direct payment money to book flights. Ms X says she reimbursed the direct payment account the cost of the airline ticket, (£900) in June 2019. She says the money spent in coffee shops and a restaurant was used for Mr Y’s wellbeing, and the cash withdrawals were to reimburse her personal funds for money she had spent on activities for Mr Y.
14. Ms X says since the direct payment stopped, Mr Y has missed out on activities which he needs to maintain his wellbeing.
15. Ms X complained to the Council, and later met with a council officer on 5 November 2019. Following the meeting Ms X sent an email to the officer reiterating her concerns. She said Mr Y’s allocated social worker was not acting in his best interests and she requested another social worker be allocated. She said the social worker had unfairly scrutinised the bank statements which the Council had not done in in previous audits and that the usage of the direct payment monies had not been questioned previously. I have had sight of the officers undated response. It responds to each of the points Ms X raised and said, it was the Council’s finance team that undertook the financial monitoring, not the social worker. And, that due to staff shortages it was not possible to allocate a different social worker.
16. I have had sight of a care and support plan completed in December 2019. This records the suspension of the direct payment in August 2019, due to non-adherence with the terms and conditions of use and says the “The DP needs to be reactivated to support [Mr Y] with identified outcomes (Gym and voluntary activities). The account will be managed by DD Payroll”.
17. In early 2020, the pandemic hit the UK. Mr Y had difficulty understanding the implications and limitations this placed on freedom, and the risk to him, other residents, and support staff of not complying with government restrictions.
18. The Council reviewed Mr Y’s care and support in April 2020. I have had sight of the support plan. It records that Mr Y was going out for most of the day, and “Due to the risk there was a request to increase the care package to cover the waking hours to ensure [Mr Y] is occupied with meaningful activities and also supervised when he goes out during this lockdown period”. The Council agreed 1-1 support for eight weeks commencing the 28 April 2020, after which, it would review the situation.
19. It recorded, the “Direct Payment is NO longer is required since [Mr Y] is not able to attend Gym or other Daily Activities”.
20. Ms X continued to complain to the Council in 2020 and 2021. The Council provided Ms X with a final written response on 29 April 2021. It maintained its position and did not uphold the complaint.
21. In response to my enquiries, the Council said Mr Y’s direct payment is no longer needed because he is not able to attend the gym and other daily activities.

Analysis

22. Direct payments must be used to meet a person’s assessed needs. Council’s must ensure the monies are used for the purposes set out the care and support plan.
23. Everyone receiving direct payments must keep records and submit accounts to the council showing how the money was spent.
24. Ms X signed a direct payment agreement in 2015, in doing so she acknowledged acceptance of the Council’s terms and conditions.
25. There is no fault by the Council in the way it audited Mr Y’s direct payment account. Ms X says it scrutinised the account, it was not wrong to do so.
26. Ms X says she used the direct payment monies to meet Mr Y’s eligible care needs in the community, and to maintain his wellbeing. Spending in coffee shops and restaurants was not specified in Mr Y’s care and support plan.
27. While it is true that direct payments allow for independence and flexibility, the Council must be satisfied that people spend the payments on meeting care and support needs as set out in the care and support plan. It does not mean recipients can spend direct payments on whatever they choose. 
28. The Council clearly explained what expenditure it considered unauthorised. It acted in line with its policy, and it is not at fault for deciding to recover the money.
29. It is for the Council to decide what action to take if it considers Ms X is not using Mr Y’s direct payment monies appropriately. The Council acted in line with relevant guidance and policy. There is no fault in its decision to withdraw direct payments.
30. However, when cancelling the direct payment, the Council failed to offer Mr Y a commissioned service to meet his assessed needs, meaning he had unmet eligible care needs. This is fault by the Council.
31. The Council says the direct payment is no longer required because Mr Y is unable to attend the gym and other leisure activities. That may have been the case during the pandemic, but the direct payment was withdrawn prior to this, in August 2019. Mr Y was without services he was entitled to between 22 August 2019 and 28 April 2020, after which the Council commissioned 1-1 support for Mr Y.
32. The Council says Mr Y currently receives seven hours 1-1 support a week, provided by support staff at his living facility. It is unclear whether this is specifically to support him to access the community and participate in leisure activities.

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Agreed action

33. The Council will, within four weeks of the final decision

• provide Ms X with a written apology for the failings above
• provide Mr Y with a written apology – appropriate to his understanding
• provide an up-to-date care and support plan detailing the support Mr Y currently receives. And clarify the purpose of the 1-1 support received
• consider a remedy appropriate for Mr Y for missed services between August 2019 & April 2020
• establish if Mr Y had any unmet needs beyond April 2020
• provide evidence of the above to this office

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Final decision

34. There is no fault in the Council’s decision to stop Mr Y’s direct payments and seek repayment of unauthorised spends. However, it failed to offer Mr Y a commissioned service to meet his assessed needs.
35. The above recommendations are a suitable way to settle the complaint.
36. It is on this basis; the complaint will be closed.

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Investigator's decision on behalf of the Ombudsman