Summary: Mr X complained the Council changed and suspended his son, Mr Y’s, direct payments during 2020 without adequate communication or explanation. The Council was at fault for failing to pay Mr Y’s respite payment since 2020 despite it being an assessed care and support need. The Council agreed to apologise and pay Mr X a total of £500 to recognise the frustration, uncertainty, time and trouble and loss of opportunity that caused. It agreed to reinstate the respite payment. An administrative error also meant Mr Y did not receive his direct payment during October 2020. The Council has already apologised to Mr X and paid the missing amount which is a suitable remedy.

The complaint

1. Mr X complained the Council changed and suspended his son, Mr Y’s direct payments without communication or explanation during 2020. He said the Council agreed to increase Mr Y’s weekly payments to include a pro-rata respite payment which it historically paid yearly but so far it has not implemented this.
2. Mr X said the Council’s handling of Mr Y’s direct payments and its handling of his complaint about the matter has caused both him and Mr Y distress, uncertainty and time and trouble. Mr Y remains without the respite payment he is entitled to.

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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. 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)
5. 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

6. I spoke to Mr X about his complaint and considered information he provided.
7. I considered the Council’s response to my enquiry letter.
8. Mr X and the Council had an opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Direct Payments

9. Everyone whose needs the local authority meets must receive a personal budget as part of their care and support plan. The personal budget gives the person clear information about the money allocated to meet the care and support needs identified in the assessment and recorded in the care and support plan.
10. Direct payments are cash payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs. The council has a key role in ensuring that 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.

The Equality Act

11. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
12. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty. The ‘protected characteristics’ referred to in the Act includes disability.
13. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.

What happened

14. Mr Y is an adult with disabilities and lives at home with his parents, Mr and Mrs X. Mr Y has a care and support plan and has received direct payments to pay for his care and support since 2011. Mr Y’s care and support plan in place at the start of 2020 showed he received weekly direct payments of £564.71 as well as a yearly one-off respite payment of £3,000 to help fund one-to-one support when Mr and Mrs X went on holiday.
15. In April 2020 the Council spoke with Mrs X and advised it intended to change the way it paid Mr Y’s £3,000 respite payment. It said rather than pay it as a yearly lump sum which it had historically done, it would pay the amount pro-rata with his usual weekly payment. Mrs X told the Council she had no concerns about this and acknowledged the Council’s intentions. Records show the Council recorded Mr Y's new weekly direct payment as £622.40 to reflect the pro-rata respite payment. There is no evidence the Council implemented this new payment and Mr Y continued to receive the previous weekly amount of £564.71 during much of 2020.
16. In June 2020 the Council wrote to Mrs X to advise her it planned to carry out a review of Mr Y’s direct payments. It said an officer would contact her to arrange this. Mrs X provided the Council with a breakdown of how Mr Y’s direct payments were used. Case notes from October 2020 showed the Council approved Mr Y’s direct payments usage but recommended the Council review his care and support plan as it had not done so since 2018.
17. In October 2020 Mr X called the Council because it had not paid Mr Y’s direct payment as usual. Mr X said he spoke with the direct payments team who told him the Council had suspended Mr Y’s payments. The team were unable to give Mr X an adequate explanation other than suggesting it might be linked to the proposed increase to the weekly payment. Mr X was unhappy with the Council’s explanation having received no notification of the suspension or the proposed increase to the weekly payments.
18. Internal case notes show the Council looked into Mr X’s concerns. It noted it had stopped Mr Y’s payments but had no idea why. Case notes show the Council considered Mr Y had a large surplus of funds in his direct payments account. The notes show it intended to carry out a review of Mr Y’s spending before deciding whether to backdate the weekly increase to March 2020. The Council informed Mr X it had restarted Mr Y’s direct payments at the weekly rate of £564.71, pending a review and had repaid the amount for the missing period.
19. Mr X formally complained to the Council about the matter in November 2020. Mr X asked why the Council suspended Mr Y’s direct payments and why he was not notified. Mr X asked about the weekly increase to the direct payments and why that had not been implemented or authorised. Mr X said this should have taken effect from March 2020. Regarding the increase in Mr Y’s weekly payments the Council said this was not yet authorised but confirmed it would consider backdating it to March 2020. The Council said this was pending a review of what respite care was needed for the next financial year and whether Mr Y required backdated funds, given there was a large surplus in his account due to not spending because of COVID-19.
20. Mr X was unhappy with the Council’s response and asked it to further consider his concerns.
21. The Council wrote to Mr X again at the start of January 2021 after he was unhappy with its response. The Council said there were no records or audit trail showing who authorised the suspension of Mr Y’s direct payments. The Council said there was no decision taken to suspend the payments and confirmed it was due to an administrative error for which it apologised. The Council said the increase to Mr Y’s weekly direct payment amount was pending following a direct payments review.
22. At the start of 2021 the Council started a review of Mr Y’s care and support, however, due to COVID-19 restrictions in place at the time, it was unable to meet with Mr and Mrs X and Mr Y in person. The Council explained the review would include discussions around Mr Y’s respite arrangements and funds this required going forward as well as whether any backdated payments were required.
23. Mr X escalated his complaint specifically about how the Council intended to consider Mr Y’s respite payment as part of his care review. Mr X said this had never been explained to him.
24. The Council provided Mr X with a final response in April 2021. It apologised for the poor communication around how it would consider Mr Y’s respite payment going forward and for failing to inform or explain that to Mr X in a timely manner. It did not address points it had already considered in its earlier response and did not refer Mr X to us if he remained unhappy.
25. At the time of writing, Mr Y’s care and support review remains ongoing and in draft form. Records show Mr X stated he would like his complaints resolved before continuing with Mr Y’s review. Mr X currently has a separate ongoing complaint about the Council’s handling of Mr Y’s needs assessment and care and support plan review. Therefore, I have not looked into this aspect any further.
26. Mr X remained unhappy with the Council’s handling and communication around Mr Y’s direct payments between 2020 and 2021. Specifically, around how it suspended Mr Y’s payments, its communications around the proposed increase to the weekly payment and its handling of his complaint. Mr X believes the Council has discriminated against Mr Y because he has not received respite payments on an ongoing basis where others have.

My findings

27. The Council at the start of 2020 decided it would start paying direct payments weekly which it had historically paid as a lump sum. This meant Mr Y’s respite payment of £3000 was to be paid pro-rata over 52 weeks. There is no fault in that decision and it appropriately informed Mrs X about it at the time.
28. However, the Council’s communication from that point on was poor. It told Mr and Mrs X it would pay the respite payment weekly, but it has not to date done so., despite it being an assessed need in Mr Y’s care and support plan. The Council says this is because it intended to carry out a review of Mr Y’s care and support plan to assess whether the level of direct payments was appropriate. However, it did not explain this to Mr and Mrs X until it responded to the formal complaint in 2021, over six months after it initially informed Mrs X of its intention. All of this amounts to fault.
29. The Council failed to pay Mr Y’s direct payments in October 2020 which it has attributed to an administrative error. That was fault. The Council restarted Mr Y’s payments which it backdated to cover the missing period. The Council had rectified the matter by the end of December 2020 and explained what had happened in its complaint response to Mr X in early January 2021. The faults did not cause Mr Y an injustice because records show he had a surplus of funds and therefore did not go without any care and support. It did however cause Mr X frustration and uncertainty. The Council has apologised to Mr X which is sufficient to remedy the frustration and uncertainty caused to him.
30. Mr X also complained about the Council’s handling of his complaint. Mr X complained formally at the end of November 2020 and the Council issued its initial respond in early January. That response explained the administrative error which caused the failure to pay Mr Y’s direct payments in October 2020 and it provided an apology. The response also explained the proposed increase to Mr Y’s weekly payment was pending a review. The Council provided further responses in March and April 2021 to Mr X’s complaints. There was no significant delay in the Council’s responses to Mr X’s complaint and although Mr X was unhappy with the adequacy of its response, I find no fault with the Council’s handling of Mr X’s complaint. It did however fail to refer Mr X to us in its final response which is fault. Mr X however was already aware of how to use our service so that did not cause him an injustice.
31. Mr Y received a respite payment to enable Mr and Mrs X to have a break from their caring role. The failure to implement the weekly increase during 2020 did not cause Mr Y or Mr and Mrs X a significant injustice because there is no evidence they used or intended to use the respite payment during that year, given the Covid-19 pandemic. However, it did cause Mr X frustration, uncertainty and time and trouble. However, respite remains one of Mr Y’s assessed needs and the Council has not paid it since 2020. This is an ongoing injustice and has caused Mr X further uncertainty, distress and time and trouble. It means Mr and Mrs X lost the opportunity to have respite from their caring role during 2021, increasing the strain on them as Mr Y’s carers.
32. Mr X believes the Council has discriminated against Mr Y under the Equality Act. My view however is that the identified faults above are procedural faults and not because of something which would lead me to a finding of fault around the Council’s Equality Act duties.
33. The Council started a review of Mr Y’s care and support in early 2021 however that process remains paused at Mr X’s request and he has a separate ongoing complaint about the Council’s handling of the review. The outcome of the review may affect the level of respite payment Mr Y receives going forward and it will be open for the Council to consider to what extent it should backdate the payment. As it stands however Mr Y has an assessed need for respite which the Council is not meeting. The review will ultimately decide what level of respite payment Mr Y requires and whether any backdated payment to March 2020 is required. As explained above however I have not investigated this any further.

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Agreed action

34. Within one month of the final decision on this complaint the Council agreed to:
• apologise to Mr X and pay him a total of £500 to recognise the frustration, uncertainty, time and trouble and the lost opportunity to use respite caused by the Council’s failure to pay Mr Y’s respite payment since 2020, and its poor communication around the matter.
• reinstate Mr Y’s respite payment in line with his current care and support plan from January 2022. The Council should either pay it as the lump sum or as part of his ongoing weekly direct payment, as it intended to do in 2020.
• remind staff to refer complainants to us in all final complaint responses. The referral should include details of how complainants can complain to us.

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Final decision

35. I completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman