Summary: Ms X complains the Council has not dealt properly with direct payments to Mrs Y. The Council is at fault because it failed to carry out reviews of the direct payments, delayed a further review and did not provide sufficient support to Mrs Y. The Council has made some service improvements and offered to pay Ms X £1000. This is an appropriate remedy.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains the Council has not dealt properly with Mrs Y’s care because:
• It failed to carry out annual reviews of Mrs Y’s Direct Payment (DP) agreement from 2016;
• It delayed carrying out a DP annual review between January and June 2018;
• It did not complete any Capacity Assessments for Mrs Y and Ms X (her carer) leading to Mrs Y incurring a lot of debt;
• It failed to provide sufficient support to help manage and administer Mrs Y’s DP; and
• It failed to signpost Mrs Y to NHS Continuing Health Care (CHC).
2. Ms X says the Council’s failings have caused her significant distress, led to financial pressure and affected her mental and physical health. She also says she has incurred time and trouble dealing with the issues arising from this matter.

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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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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)

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How I considered this complaint

7. I spoke to Ms X’s representative about her complaint and considered documents she provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Direct payments

9. Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council has a key role in ensuring people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the Council should support them to use and manage the payment properly.
10. After considering the suitability of the person requesting direct payments against the conditions in the Care Act 2014, the council must decide whether to provide a direct payment. Where accepted, the council should record the decision in the care or support plan. (Care and Support Statutory Guidance 2014)

What happened?

11. Mrs Y requested DPs to be used to pay for her care after a care review was completed in June 2016.
12. Mrs Y signed a DP agreement in July 2016.
13. Ms X was involved in queries about how DPs can be used in September 2016.
14. The Council send Mrs Y a letter asking for documents to complete a DP audit in January 2018. Two meetings arranged for March and April were cancelled by Mrs Y. A meeting was arranged in May and took place in June 2018.
15. The Council’s Adult Reviewing Team completed a care review visit in July 2018.
16. The Council chased Mrs Y for outstanding documents needed for the audit by telephone.
17. The Adult Reviewing Team provided feedback in July 2018, noting that:
• It was ware of problems with availability of audit documents;
• It was aware that Ms X was paying bills for Mrs Y;
• A new DP agreement was signed with Mrs Y.
18. Mrs Y was admitted to hospital for two months from the end of December 2018 to the beginning of March 2019.
19. Mrs Y’s care package was cancelled from the beginning of March 2019.
20. DP payments continued to be made by the Council until July 2019.
21. In July 2019 the Council’s audit team made a referral about non-engagement with the audit process since Jan 2018 requesting support to obtain documents.
22. The Council asked Mrs Y to provide documents. Mrs Y provided some information but not all that was required.
23. The DP audit was completed in April 2020 resulting in Ms X being invoiced for nearly £24,000
24. Mrs Y passed away in June 2020 – Mrs Y’s sister, Mrs Z, learned of the amount the Council said was owed as an executor of Mrs Y’s estate.
25. The Council received further documents from Mrs Z. A final audit was completed in August 2020 based on the information provided.
26. In September 2020 Mrs Z asked the Council for information about her sister’s care. Some months later, in January 2021, she expressed concern about having been unable to meet to discuss the issues.
27. Mrs Z provided information about Mrs Y’s care circumstances, including that:
• Initially Mrs Y’s care was provided by a care provider.
• The provider was unable to meet some service hours, which were met by Ms X and some friends
• When the care provider stopped providing services Mrs Y paid Ms X cash in hand. Mrs Z was unable to provide receipts for the period where care was provided by Ms X.
28. The Council initially agreed there had been some fault and offered compensation of £250. Mrs Z complained on behalf of Ms X in March 2021, that the debt claimed by the Council was still higher than expected.
29. The Council responded in May 2021, continuing to accept some fault and offering compensation of £1000,

Analysis

30. I have reviewed the audit documents provided to me by the Council. In doing so I have found that:
• The Council accepts that Ms X provided some care to Mrs Y and payments in respect of that have been taken into account when completing the audit.
• Over £10,000 was paid after services ended and should be recoverable.
• Over £13,000 was paid which cannot be accounted for by either payments to a recognised service provider or Ms X and should be recoverable.
• A smaller amount was paid for periods where no service was required and should be recoverable.
31. On the balance of probabilities, the Council’s final audit takes into account the care Ms X provided to Mrs Y.

Audit checks

32. The Council accepted in its complaint response that it did not complete audit checks as it should have done three months after the DP was set up and after 12 months. This could have provided an opportunity for accounting errors to be identified and corrected earlier. This is fault by the Council. However, this did not cause injustice to Ms X or Mrs Y because the Council’s final audit has now taken account of payments made to Ms X.

Delayed Review

33. The Council accepted in its complaint response that there was a delay between January and June 2018 where it did not follow up a request for documents to complete an audit. This is fault by the Council. However, this did not cause injustice to Ms X or Mrs Y because the Council’s final audit has now taken account of payments made to Ms X.

Capacity Assessment

34. The Council says Mrs Y’s capacity was properly assessed. It says, “[Mrs Y’s] mental capacity was properly considered at the time. She was clearly aware that the direct payment was to be used for an agency to provide the support that she required.” Case notes show that Mrs Y’s capacity was considered.
35. The Council says Ms X was not responsible for the management of the DPs and her capacity was not assessed. Direct Payment agreements only refer to Mrs Y, not Ms X. I agree with the Council. This is not fault by the Council.

Support

36. The DP agreements clearly state what records need to be kept. The DP agreements provide a contact number to obtain support and advice if recipients are finding it difficult to manage their DPs.
37. Records of contact with Mrs Y show these were explained to her.
38. Care records show that Mrs Y had described the administration of DP’s as “straightforward.” Prior to the audit, emails show Mrs Y told the Council that all money was accounted for and she would provide supporting receipts for expenditure.
39. The Council made a referral regarding lack of compliance with the DP audit process in July 2019. However, it first became aware of a lack of statements and audit documentation in July 2018. The Council accepts in its complaint response that in relation to the July 2018 contact, “it would have been straight forward to identify the invoices [Mrs Y] had paid from the bank account that [Mrs Y] had assured the reviewing officer she was paying. There is no evidence that the reviewing officer asked to look at the bank statements or advised [Mrs Y] to ask the bank for statements for audit purposes which would have been beneficial so that [Mrs Y] would have had the necessary paperwork required to comply with the audit. With the benefit of hindsight it would have been preferable if the reviewing officer had have done so.”
40. With hindsight, additional support may well have helped Mrs Y manage her DP’s more effectively. On the balance of probabilities, the Council did not provide sufficient information and avenues for support. This is fault by the Council. Mrs Y could have received earlier support. However, this did not cause injustice to Ms X or Mrs Y because the Council’s final audit has now taken account of all relevant circumstances.

Continuing Health Care

41. The Council accepts in its complaint response that it appears Mrs Y was eligible for CHC and that the statutory guidance says it must notify the NHS.
42. The Council is unable to provide evidence to show why a referral was not made or if a CHC checklist showed she was not eligible. This is fault by the Council. However, there is no medical evidence which would support Mrs Y being potentially eligible for NHS CHC. On the balance of probabilities, Mrs Y would not be eligible to receive NHS CHC. Therefore she did not suffer any injustice as a result of the Council’s fault.

Action by the Council

43. The Council has identified necessary service improvements as a result of Ms X’s complaint, including:
• Direct payment has undergone restructuring and is much better resourced to ensure that audit requests are now followed up efficiently.
44. The Council has apologised and offered to pay Ms X £1000 compensation. This is an appropriate remedy.

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Final decision

45. I have found fault by the Council, which caused injustice to Ms X and Mrs Y. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman