Summary: The Council was at fault for giving the complainant conflicting information about his care and support hours, but this did not mean it was underpaying his direct payments. The Council’s apology is adequate to remedy the injustice caused by this confusion. There is no fault by the Council in seeking to recover surplus funds from the complainant’s direct payment account, and it has now put in place measures to ensure he can manage the account properly. We have therefore completed our investigation.

The complaint

1. I will refer to the complainant as Mr F.
2. Mr F complains the Council:

• agreed he should be receiving more hours of care and support than it has provided funds for; and
• has harassed him to repay surplus funds from his direct payment account.

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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)
5. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

6. I reviewed Mr F’s correspondence with the Council, and the draft and final versions of his 2020 care plan.
7. I also shared a draft copy of this decision with each party for their comments.

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What I found

8. Mr F has significant care and support needs. With the Council’s agreement, his mother (to whom I will refer as Ms L) acts as his paid carer, which the Council funds through direct payments (DPs) to Mr F. This arrangement has been in place for several years.
9. In January 2020, Ms L made a complaint to the Council. She raised three points:

• that the Council had calculated Mr F’s DPs at the wrong hourly rate, over several years;
• that it had agreed Mr F should have 5½ hours of care per day, but had only been providing funds for 5hrs per day; and
• that it had asked Mr F to repay surplus funds in his DP account.

10. The Council provided a breakdown of the hourly rates it had paid at over the previous five financial years. It said this was in accordance with its set rates. It therefore did not uphold this element of the complaint.
11. It then said it had agreed, in 2018, Mr F should receive 35hrs per week of care (which amounted to 5hrs per day). When the Council reviewed Mr F’s care plan in 2020, it had sent a draft version to Ms L, and this draft had mistakenly referred both to ‘5hrs’ and ‘5½ hrs’ of care per day. The Council acknowledged this error and apologised for the confusion it caused, but confirmed the final version of the review had correctly referred only to ‘5hrs’.
12. The Council also accepted it had not sent a final copy of the 2020 review to Mr F or Ms L. It therefore partially upheld this element of the complaint, in recognition of the uncertainty it had caused.
13. The Council said, at Mr F’s last review, he had agreed to repay the surplus funds in his DP account, and to retain only 8wks worth of monies. Since then, however, a dispute had arisen about the amount of support Ms L was providing to Mr F.
14. In an attempt to settle the dispute, the Council had offered Ms L a lump sum back payment of approximately £4000, but Ms L had said she did not consider this reflected the amount of additional support she had provided. The Council explained it had calculated the lump sum on the basis Ms L had provided an extra 5hrs of support per week over the 2018/19 financial year, and that this was in fact more than the additional ½ hr Ms L had complained about.
15. However, the Council said this payment was contingent on Mr F providing copies of his bank statements, to allow it to audit his use of DPs. It said the DP agreement Mr F had signed in 2018 explained the Council would carry out such checks, and that it had the right to recover unused funds. The agreement also explained the Council could review and revoke a DP agreement if it considered it was being used inappropriately.
16. The Council said its 2020 review had confirmed there were surplus funds to be returned. It had emailed Mr F in January 2021 asking him to provide copies of his bank statements, and explaining it would not make the lump sum payment if he failed to return the surplus.
17. The Council therefore did not uphold this element of the complaint, and asked Ms L and Mr F to reconsider their position. It explained they could approach the Ombudsman if they wished to pursue their complaint further.
18. Mr F complained to the Ombudsman on 16 March. He said the Council had been underpaying his DPs, because he was due to receive 5½ hrs of care per day, and said, as a result of this, he was not receiving the care he was due. Mr F also said the Council had “harassed [him] … to give back all the care money that was awarded for [his] care but not released to pay the carer”.
19. After we had accepted Mr F’s complaint for investigation, the Council wrote to him again on 19 May. It thanked him for arranging to repay the surplus funds from his DP account, and said it had now arranged for a pre-paid card and support from a charity to help Mr F manage his account in future.
20. The Council acknowledged Mr F had raised some points about its response to his complaint, and said it had referred him to an advocacy service to help address these points. Unfortunately the advocacy service had not agreed that Mr F needed an advocate and refused the referral. The Council said it did not share the service’s view on this but apologised for the delay which had arisen as a result.
21. The Council said it was “very pleased” the complaint was now resolved, and confirmed it would now process the agreed £4000 lump sum. It noted Mr F had asked whether a similar back payment could be made to reflect additional support between 2016 and 2018, but the Council said it was too late for it to now consider a complaint about this.

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Legislative background

Direct payments

22. Direct payments are a means of paying someone’s personal budget to them so they can arrange and pay for their own care. They are intended to give people independence, choice, and control over how their needs are met.
23. A person can use DPs to employ a personal assistant to provide their care. They then become an employer with responsibility for tax, national insurance, holiday pay, sick pay, and redundancy. Councils must be sure a person can manage the DP and should take all reasonable steps to help and support them. Some councils use support agencies to provide this service.
24. Councils must be satisfied the DP is used to meet a person’s care and support needs, and that the person is meeting their obligations. They should have systems in place to monitor payment use. Councils should stop DPs if the person is no longer capable of managing the payment, or if they fail to comply with payment conditions.

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Analysis

25. Mr F complains the Council has been paying his DPs to cover 5hrs of care per day, whereas he considers it agreed he needed 5½ hrs of care per day. He also says the Council has “harassed” him to repay surplus funds, and that funds paid for his care have not been “released”.
26. The Council has explained it agreed, in 2018, that Mr F needed 35hrs of care per week from Ms L. This amounted to 5hrs per day (over a seven-day week).
27. When it came to review Mr F’s care plan in 2020, the Council sent him a draft amended copy of the plan. This draft wrongly referred both to ‘5’ and ‘5½’ hours of care per day. And, although the final version did not contain this error, it appears the Council neglected to send Mr F a copy.
28. I find fault by the Council on both of these points, as it has itself conceded. However, on a substantive level, I am satisfied the Council never agreed to fund 5½ hrs of care per day for Mr F. It follows that I do not find the Council underpaid him, and so there is no injustice in this respect.
29. I do accept there is still some injustice arising from these faults, in that they caused Mr F and Ms L unnecessary confusion over the correct number of hours. But I consider the Council’s apology is sufficient to remedy this injustice.
30. Separately, I note the Council has more recently agreed to increase Mr F’s paid hours to 7 per day. But this appears to be a reflection of increased need, and not an acceptance it had previously been underpaying him.
31. I also note the Council offered – and has now paid – a lump sum back payment for additional hours of care Ms L provided Mr F in 2018/19. However, as I understand it, this is because the Council accepted Ms L had been providing Mr F with more than 5hrs of care per day, not that it accepted it had agreed to fund 5½ hrs as part of his care plan.
32. Mr F has also referred the Council’s attempts to recover surplus funds from his account, which he regards as harassment.
33. It is normal part of the DP process for councils to regularly audit service users’ accounts. This is to ensure they are using the money appropriately, to pay for care and support for their confirmed needs. It is also normal for councils to seek to recover unused, surplus funds from service users’ accounts.
34. I do not agree, therefore, there is any evidence of harassment by the Council. Indeed, I note from records the Council provided that it was aware of a significant surplus – more than £20,000 – in Mr F’s DP account as early as 2018. Given the Council was still negotiating the repayment of this money with Mr F three years later, I do not accept it can reasonably be said to have been ‘harassing’ him.
35. I must also observe here that it is difficult to reconcile Mr F’s claims of underpayment, with the fact he was able to accrue more than £20,000 of unused funds in his account.
36. I note Mr F characterises this part of his complaint as the Council refusing to “release” funds it paid for his care. But this is a misapprehension. The Council has no control over Mr F’s DP account; it is his, alone, to manage. Once the Council has paid money into the account, it cannot prevent Mr F spending it. There is no mechanism by which the Council can refuse to release funds once it has paid them.
37. It is vital that, before making a DP agreement, the Council should ensure itself the service user is capable of managing their account. I cannot investigate how the Council originally made the agreement, as this happened considerably longer ago than the 12mth ‘permitted period’ for complaints to the Ombudsman.
38. Nevertheless, I must question whether Mr F was properly able to manage his account, when the agreement was originally made. It is particularly troubling he was able to accrue such a large surplus in his account, which implies the Council had not been properly auditing it.
39. This said, I note it appears the Council has now recognised this, and has arranged for Mr F to receive support in managing his DPs.

Conclusions

40. The Council was at fault, because it gave Mr F conflicting information about the number of hours of care it had agreed to fund. However, I am satisfied that it only intended to agree 5hrs per day. The injustice to Mr F here, therefore, is not that he has been underpaid, but simply the confusion the Council’s fault has caused him. I am satisfied the Council’s apology is sufficient to remedy this.
41. There is no evidence of fault in the Council seeking to recover surplus funds from Mr F’s DP account. Although I have not investigated the circumstances of the original agreement, it is possible the Council should have recognised earlier that Mr F could not properly manage his account without support. Either way, however, I am satisfied it has now addressed this issue.

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Final decision

42. I have completed my investigation with a finding of fault causing injustice, but which the Council has already remedied.

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Investigator's decision on behalf of the Ombudsman