Summary: Mr X complained about the Council’s handling of his direct payment account that led to it being suspended and him being without care. We have not found the Council to be at fault. It was under a duty to carry out an audit and offered a care package instead of direct payments. However, we have found some fault with how it dealt with his account. Invoices were sent to a wrong address and there was delay in writing off a debt. This caused distress and inconvenience to Mr X. To remedy this injustice, the Council has agreed to apologise and make a small payment to Mr X.

The complaint

1. Mr X complains that the Council failed to manage his direct payments properly, causing significant distress and harm to his well-being. In particular, he complains about the following matters
1. Suspension of payments without due cause leaving him without essential care for many months.
2. Conduct and incompetency of the finance officer involved and the failure to replace him.
3. Accounting/administrative errors.

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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 question whether an organisation’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)
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 spoke with Mr X and reviewed the information he provided.
6. I made enquiries with the Council and reviewed the relevant law and policy.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Direct payments

8. A person with eligible care needs can have a council arrange their care. Or, if they wish, they can arrange their own care using a payment the council gives them (‘a direct payment’). (Care Act 2014, section 31)
9. Councils must be satisfied the person is using the direct payment to meet the care and support needs set out in the plan. If they are not satisfied, they must stop the direct payment. (Care Act 2014, section 33)
10. Councils can stop a person’s direct payment if the council thinks they can no longer manage them, even with support. The person should first be given greater support to demonstrate they can manage (Care and support statutory guidance, paragraphs 12.71 and 12.80). If a council decides to withdraw a direct payment, it should review the care and support plan and agree alternative provision, giving notice. (Care and support statutory guidance, paragraph12.81)
11. Councils must monitor direct payments. They should not place high administrative burdens on users, but monitoring should go beyond financial monitoring and may include identifying wider risk issues. (Care and support statutory guidance, paragraph 12.4)

The Council’s direct payment policy

12. All recipients must understand and sign a Direct Payment Agreement setting out the respective roles and responsibilities of both the Council and the recipient.
13. The Council has proportionate financial monitoring arrangements to ensure public funds have been spent properly. All records relating to direct payment should be made available on request. If an individual does not engage with financial monitoring arrangements, the direct payment could end and an alternative way of meeting needs offered.
14. Every direct payment account is subject to an annual audit.

What happened

15. I have set out below a summary of key events but is not meant to detail everything that happened.
16. Mr X is disabled and requires support with daily living activities. Since 2015 he received a package of support funded by a direct payment.
17. In early 2019, the Council contacted Mr X to carry out a review of the direct payment arrangements.
18. Due to Mr X’s personal circumstances at the time, this proved difficult to arrange. In acknowledge of Mr X’s situation, in September 2019, the Council agreed to postpone the review.
19. In November 2019, the Council advised Mr X the review was necessary and tried to schedule an appointment. This proved unsuccessful and so in February 2020, Mr X was told the direct payment account had been temporarily suspended. This meant no payments could be made to Mr X’s personal assistants. Mr X was also told there was a large debt owed on his account
20. In March 2020, the Council offered to provide Mr X with a package of home care while the direct payments were being sorted out. Mr X strongly objected to this because it would not give him the flexibility he needed with his care arrangements. He was also worried about the risk of Covid-19 transmission from care workers who were visiting other vulnerable clients. As he was unable to pay his carers, he had no choice but to cancel his care. Frustrated by the situation, Mr X instructed a solicitor to liaise with the Council on his behalf.
21. Mr X’s solicitor told the Council it had acted unlawfully by suspending the direct payment account and it had failed to take into consideration serious safeguarding concerns that had arisen. He said Mr X had provided the Council with all relevant information and had co-operated throughout.
22. The Council disagreed. It explained the audit was significantly overdue and there were discrepancies on Mr X’s account. The Council advised the solicitor of the information that Mr X had so far failed to provide. It continued to offer Mr X an alternative care package.
23. To resolve this, a meeting was arranged with Mr X’s solicitor and the Council. The Council explained what paperwork Mr X had to provide.
24. Once all the required information was provided by Mr X, the Council agreed to write off the outstanding debt and reactivate his direct payment account.
25. Part of the debt that had arisen was because Mr X had paid his client contribution into a different account. He had not received the invoices advising him how he should pay this money because they had been sent to the wrong address. This was a Council error.
26. Despite being told the debt had been written off, Mr X received an invoice for £1800. This caused him great distress and inconvenience trying to resolve the matter. The Council agreed it had made a mistake and apologised.
27. Mr X was dissatisfied with the Council’s handling of his direct payment account. He says the finance officer involved (Officer J) failed to reply to emails and this poor communication caused considerable anxiety and distress. He felt the Council was wrong to suspend his direct payment account and this led to him not receiving the support he desperately needed, particularly during the lockdown restrictions. He felt he should not have had to instruct a solicitor to get his direct payments reinstated. His solicitor asked for Officer J to be removed from the case. Despite his request, the Council failed to replace Officer J. Mr X was also unhappy the Council had not provided a proper apology for the mistakes it had made. This formed his complaint to the Ombudsman.
28. In response, the Council said:

• The decision to suspend Mr X’s direct payment account was only made as a last resort after he failed to co-operate with the numerous requests to complete the long-outstanding audit.
• An audit was necessary because of several, unexplained anomalies on the account.
• A mistake was made when it did not cancel the debt of £1800.
• It had agreed to appoint a new finance officer, but this could not happen straight away due to Officer J’s significant involvement in the case. A new officer took over the case in April 2022.

Analysis

29. I will consider the specific areas of complaint below:

Suspension of payments without due cause leaving Mr X without essential care for many months

30. All direct payment recipients must comply with certain auditing requirements. Mr X signed an agreement about this.
31. The case records I have seen demonstrate the Council made many attempts to arrange the audit from 2019. I agree this was necessary.
32. Mr X has explained he was going through a particularly bad time in his life and this was, in part, the reason why he was not able to properly engage with this process. He feels the Council should have been more understanding and patient.
33. The evidence shows the Council did allow a considerable amount of leeway. It agreed to pause the audit at Mr X’s request in September 2019 and offered Mr X several chances to participate in a place/manner that was convenient to him.
34. There were discrepancies on his account and for this reason, the audit was even more necessary. The Council has a responsibility to ensure recipients are able to manage them and it would have been in default of this duty if it did not persist in trying to engage with Mr X.
35. In view of the efforts and length of time that the Council waited before suspending the account, I do not find fault with the Council’s decision to do so.
36. Where an account is suspended, both the law and Council policy expects councils to put alternative arrangements in place. The Council offered to do so but this was refused by Mr X. This was his choice. However, I am satisfied the Council complied with its obligations.
37. For these reasons, I do not find fault.

Conduct and incompetency of the finance officer involved and failure to replace him

38. The Council has accepted there were some occasions, due to staff absence or when awaiting information from others, that Mr X’s emails were not responded to the same day or soon afterwards. It has apologised for these incidents.
39. My analysis of the relevant records reflects this. While Mr X may have waited longer that he would have preferred for a response on certain occasions, I did not see there was a consistent pattern of late replies or any delay being excessive. For this reason, I do not find there was fault here.
40. The Council has explained the reasons why it was not possible to replace Officer J sooner than it did. The Council was not obliged to replace him at all and agreed to do so out of courtesy to Mr X in an attempt to start afresh when the direct payment account was in order. The timeframe for this was a matter for the Council, and not either Mr X or the Ombudsman to determine.

Accounting/administrative errors

41. Part of the debt accrued because invoices for Mr X’s client contribution were sent to the wrong address. Had they been received by Mr X he would have known where his client contribution needed to be sent. It is understandable that Mr X was surprised and distressed to be told there was a significant debt outstanding
42. The Council has accepted it did not write off the debt owed on Mr X’s account when it should have done. However, once this was brought to its attention by Mr X, the records show the error was corrected without further significant delay.
43. I am satisfied, taken together, there was fault in the way Mr X’s account was handled and this caused Mr X distress and uncertainty that requires a remedy.

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Agreed action

44. Within four weeks from the date of my final decision, the Council has agreed to take the following action:
1. Apologise in writing for the fault identified in this decision statement.
2. Pay Mr X £100 for the distress caused by its administrative mistakes.

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Final decision

45. There was some fault in the way the Council managed Mr X’s direct payment account. The Council has agreed an appropriate remedy and on this basis I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman