Summary: Mrs B has complained about the way the Council handled her son G’s care and support plan and direct payments. The Ombudsman considers that the Council has offered a suitable remedy for the fault in its handling of G’s account. It will now consider the affordability of the payments to recover the overpayment.

The complaint

1. Ms B complains that the Council has failed to deal properly with the Direct Payments for her son G’s care and support:
• It has not updated his Care and Support Plan for five years, so it was unclear on what he could spend his Direct Payments.
• It has not audited his Direct Payment account properly and has made overpayments to the account.
• It is now seeking to recover monies from him which he cannot afford and which will cause him financial hardship.

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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. 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)
4. If we are satisfied with an organisation’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

5. I have considered Mrs B’s written complaint and supporting papers and discussed her complaint with her. As the recovery of overpayments involves a review of the payments since G’s care package began, I have exercised discretion to consider the Council’s handling of G’s care package and financial contributions since it assessed his needs in 2014.
6. I have made enquiries of the Council and considered its response. I have had regard to government guidance. I have also sent Mrs B and the Council a draft decision and considered their comments.

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What I found

Legal and administrative background

Care Plan and reviews

7. The Care Act 2014 says that councils must provide a care and support plan. This 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. Councils should review plans at least every 12 months. The periodic review should be proportionate to the needs to be met,

Personal budgets and direct payments

8. The care and support plan must include a personal budget, which is the cost of arranging the necessary care and support for that person. A personal budget can be administered in several ways, including by direct payments. Direct payments can be made to enable individuals to arrange their own care and support.

Charging for social care services

9. A council has discretion to charge for non-residential care. If it decides to charge, it must carry out a financial assessment to decide what a person can afford to pay and provide a written record of the completed assessment.

Recovery of debts

10. The statutory guidance highlights the sensitivity of recovering debts from those receiving care and support, given their potentially vulnerable nature. Councils should keep in mind the need to act reasonably, in accordance with human rights legislation, and the wellbeing principle set out in the Care Act and arrangements for debt repayments must be affordable. The guidance says that, before pursuing any course of action, councils should consider whether it is appropriate to recover all or part of the debt.

What happened

11. Mrs B’s adult son, G, has a diagnosis of autism. Mrs B supports him as a carer but needs additional support. In October 2014, the Council assessed G’s needs and put in place a care and support plan with a personal budget.
12. This comprised 11 hours support for a personal assistant to help G with budgeting, managing correspondence, developing skills for managing money, identifying opportunities for socialisation and undertaking activities, facilitating communication and improving performance at work. It also included the cost of employee insurance and six weeks’ respite for Mrs B.
13. The Council met G and Mrs B at home in January 2015 to explain the process of employing a personal assistant. It then met Mrs B in the office in March 2015 to discuss the use of Direct Payments. The care package started the next month. At this point, the Council assessed G as having to make no contribution to the cost of his care.
14. Mrs B signed the Direct Payment agreement in May 2015. The agreement stated that the “Support Plan will have been written and agreed with you and you should have been provided with a copy. If you have not, please ask your Social Worker / Care Manager for this”.
15. It also stated the need to:
• use the Direct Payment to meet the needs and achieve the outcomes set out in G’s support plan;
• discuss in advance with Adult Social Care the use of Direct Payments for any other purposes;
• report any changes of circumstances; and
• keep records of expenditure for audit.
16. The Council started the first Direct Payment monitoring in February 2016. In June 2016, it conducted a financial assessment with Mrs B present. G was assessed to contribute £58.30 a week towards the cost of his care. This was expected to increase to £87.35 pending confirmation of an increase in benefits. The notification again stated the need to inform the Council of any changes in benefits and that contributions may be backdated accordingly.
17. Mrs B did not submit all the documents required for the audit until October 2016. Once completed, the audit was found to be in order. After this, because the Audit Team was under resourced and the Council graded G’s case as low risk (due to the previous favourable audit), it agreed a two-year audit.
18. The Council reviewed and provided a written update of G’s care plan in March 2017. It did not change the hours of support, though some were to be delivered by an agency. In May 2017, the Council carried out another financial assessment. It had found out from the Department for Work and Pensions that G’s Employment and Support Allowance had increased from June 2016, though it had not been notified by Mrs B.
19. The Council therefore increased G’s weekly contribution to £110.25, backdated to June 2016, and notified Mrs B of this. As a result, the Council had overpaid G by £51.95 a week from June 2016 to May 2017, totalling £2,523.29. It stopped payments to the G’s DP account to recover the overpayment.
20. Mrs B contacted the Audit Team and the Social Worker in August 2017 and asked why the Council had stopped payments to the DP account. The Council explained that this was because of the increase in G’s weekly contribution. Mrs B also contacted the Council to ask about a breakdown of the support hours in the plan. The case notes record that the plan was reviewed but no changes made.
21. In April 2018, a programme update caused an error in the Council’s payment system and incorrectly reinstated payments. This was quickly resolved and payments stopped, however £803.76 remained unrecovered.
22. In May 2018, the Council assessed G’s contribution as £117.00 a week. This was higher the £111.85 weekly cost of the personal assistant, so G become a self-funder and the Council made no Direct Payments.
23. From October 2018 onwards, the Council requested audit documents from Mrs B several times but only received them in October 2020. Meanwhile, it changed its recovery process to continuing payments but raising invoices for overpayments.
24. Mrs B signed a further Direct Payment agreement in 2019.
25. In April 2020 the Council made a one-off payment of £1,709.74 due to system error. Mrs B says she immediately made the Council aware but was told to keep the funds in the account. She then returned the funds in January 2021 after the audit was complete. The Council has since resolved the system error.
26. In May 2020, the Council assessed G’s contribution as £135.30 a week. This was again above the £111.85 weekly cost so G remained self-funding and no Direct Payments were made.
27. In October 2020, the Council completed its audit, and determined that G had not employed the full care identified in his care plan from around March 2017. It therefore asked G to repay £2,797.65 in overpaid Direct Payments.
28. Mrs B complained to the Council which agreed to reduce the payment by £250 in response to the delayed audit. It also agreed to deduct the cost of employer’s liability insurance, leaving a balance of £2,366.65 to be recovered.

My assessment

Out-of-date care and support plan

29. Mrs B says she has not previously seen the 2014 support plan which set out the hours and what the funding was for. She says the repeat support plans were either discussed over the phone or did not include the number of hours or what they were for, so it was unclear on what they could spend the Direct Payments. She says she stopped paying into the DP account and instead paid privately for care because she was unclear what the funding could be used for.
30. The Council says that in line with the Direct Payment Agreement, the person must only spend money on agreed care and support needs as stated in the person’s care and support plan. It says that the following expenses were allowed:
• the cost of Personal Assistant wages
• Creative Support invoices
• the cost of employer’s liability insurance
31. It has explained that G and Mrs B were only able partly to provide evidence/ receipts to show that money was spent on items approved in the Support Plan.
32. I note that the October 2014 care and support plan stated that G’s personal budget was for 11 hours per week for a personal assistant to carry out specified tasks. The Council met Mrs B in 2015 to discuss the Direct Payment Agreement and employing a personal assistant. Mrs B signed the agreement which stated that payments could only be spent on items approved in the Support Plan or for which separate advance approval had been given.
33. I note the Council reviewed G’s care and support plan in 2015, 2016, 2017, 2019 and 2020. Mrs B participated in four of the reviews, including the most recent in November 2020. The care plan hours did not change throughout this period, though the plan changed in 2017 to include payments to an agency.
34. The note of the conversation from the November 2020 review states the following:

“[Mrs B] confirmed that the support plan for [G] is for 11 hours a week but added that he is currently having anywhere between 4 to 15 hours a week support from his PA and said number of hours depends on whether he has any hospital appointments or places he needs to be… After her speaking to [G, Mrs B] confirmed [G] is happy with the support he receives from [his PA] because she is flexible with her time so it works really well for him.”

35. The notes also record that Mrs B was not putting G’s own contributions into the Direct Payments bank account but was instead making payments from her own account as this was easier to manage. She was also paying G’s personal assistant a rate of £14.00 per hour and was aware this was above the Council’s agreed rate of £9.18 an hour (plus holiday pay).
36. I have considered Mrs B’s assertion that she did not understand what she could spend Direct Payments on. However, she had agreed to spend the payments on items which were agreed in the support plan, and to provide receipts. There were numerous discussions with her about the care package and written updates in 2017 and 2020. The care package did not change significantly, with just a change to allow some of the 11 hours of support payments to be made to an agency. Mrs B was aware in 2020 that the package remained as 11 hours of support, as it had been since the outset, and was happy with this at the time.
37. I consider that Mrs B was aware that she needed to provide evidence of expenditure on approved items. Moreover, there were many opportunities for Mrs B to seek clarification if she was unsure on what she could spend the payments. I therefore see no fault in the Council seeking to recover Direct Payments for which it had not received receipts or which were for ineligible items.

Inadequate auditing and overpayment of Direct Payments

38. The Council accepts it was at fault in not starting an audit for two years between 2016 and 2018 and, in recognition, it agreed to reduce G’s debt by £250. It also increased staffing to deal with the volume of monitoring. I consider that the Council was not responsible for further delays in completing the audit, as it was awaiting necessary information to complete the audit.
39. There were two wrong overpayments made on G’s account. The Council identified them, told Mrs B and has resolved the system problems.

Recovery of overpayments

40. The Ombudsman publishes Guidance on Remedies to try to provide consistency in our recommendations. If there is fault causing injustice, we aim to put the complainant back in the position they would have been in if nothing had gone wrong. For complaints about charging, the Ombudsman may recommend:
• reassessing financial contributions and backdating where appropriate and
• writing off outstanding charges where an invoice arises from fault.
41. The delay carrying out the audit and the wrong overpayments may have caused some confusion. However, Mrs B paid many user contributions from her own bank account rather than adding them to the Direct Payment account, so this would have made it difficult to monitor the account balance. Moreover, she did not notify the Council of the change in benefits which caused the first overpayment.
42. The Council has now reviewed the financial assessment and completed its audit with the information that Mrs B has supplied. I see no reason to question its calculation of the amount overpaid.
43. I have considered if there are grounds to seek any further remedy. I note that:
• the Council has offered to reduce G’s contributions by £250;
• it informed Mrs B of the permitted use for the Direct Payments at the outset;
• it undertook regular reviews of the financial assessment and support plan; and
• Mrs B knew what package was in place at the November 2020 review.
44. I do not therefore that there is fault by the Council which has caused injustice that warrants a further financial remedy.
45. However, I note that G’s income is from benefits. His care and support plan says he has limited ability to manage his own money and has got into debt before, and Mrs B has power of attorney over his finances.
46. The statutory guidance makes it clear that the Council should take into account reasonableness, human rights, wellbeing and affordability, when considering whether if it is appropriate to recover a debt.
47. I explained to the Council that I had seen no evidence that it had carried out this necessary step before deciding whether to recover the debt. This was fault but the Council has now considered whether to recover the debt.
48. It has noted that:
• G’s income is from benefits only and he has limited ability to manage his own finances;
• Mrs B acts as G’s Power of Attorney and so is in charge of managing G’s finances on his behalf;
• Mrs B decided not to follow the terms of the Direct Payment Agreement regarding the use of the nominated account for the sole use of the direct payment, and this no doubt contributed to the confusion regarding payments and contributions; and
• it has deducted £250 from the sum due in acknowledgement of its own errors.
49. It has had regard to the reasonableness, wellbeing, human rights and G’s past history with regard to finances but, in light of all the above, would like to recover the full debt owed.
50. It says it had not yet carried out an “expenditure and affordability” assessment because the case was referred to the Ombudsman at this point, though I note that it had advised Mrs B and G of the option of paying in in instalments.
51. Given that G’s income is from benefits, it will now make a referral to its Sundry Income team, to assess expenditure and affordability in order to set an affordable amount that G can repay on a monthly basis that will not adversely affect his wellbeing.

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Final decision

52. I have closed my investigation on the basis that the action the Council has taken and proposes to take is a suitable remedy for the injustice to G.

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Investigator's decision on behalf of the Ombudsman