Summary: Mrs G complains the Council wrongly asked for direct payments for her daughter’s care to be returned. We have not found fault by the Council.

The complaint

1. The complainant whom I shall refer to as Mrs G, complains the Council failed to properly consider her use of direct payments to pay for training for carers for her disabled adult daughter, Miss G. She says the Council is seeking repayment of part of the direct payments because it says it was not used appropriately. Mrs G also complains the Council refused to allow her to pay for specific personal protective equipment (PPE) for carers using direct payments. Mrs G says the Council’s actions have destabilised Miss G’s care and support planning and management, and caused distress, anxiety and time and trouble for Mrs G.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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

4. I have discussed the complaint with the Mrs G and considered the complaint and the copy correspondence she provided. I have made enquiries of the Council and considered the comments and documents the Council provided. I considered Mrs G’s and the Council’s comments before making a final decision.

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What I found

Direct payments

5. Direct payments are monetary payments made to individuals who ask for them 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 must ensure 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.
6. Councils must tell people during the care planning stage which of their needs direct payments could meet. However, councils must consider requests for direct payments made at any time and have clear and quick procedures in place to respond to them.
7. A person must spend direct payments on eligible needs set out in their care plan.
8. The Care and Support Statutory Guidance says the council must be satisfied that the direct payment is being used to meet the care and support needs set out in the plan and councils should therefore have systems in place to proportionally monitor direct payment usage to ensure effective use of public money.

What happened

9. Miss G, who is disabled, has significant care and support needs and lives in a supported living flat. The Council arranged a package of care which was funded by direct payments.
10. The Professional Deputy Service (PDS) a professional financial support service, assisted Mrs G in arrangements for employing and paying Miss G’s carers. However, Mrs G is Miss G’s nominated person, employing carers and managing Miss G’s care and support and making decisions about how the direct payments were used.
11. In mid 2020 Mrs G recruited a team of six carers for her daughter’s care.
12. In June 2020 the PDS and the Council discussed the direct payment funding for the self employed carers. The social worker emailed the PDS to say she had discussed the hourly rate for the carers with her manager. She said the Council would continue to pay an hourly rate of £15.45. She also said she had considered the proposed carer training plan and that it was all standard training and included in the hourly rate.
13. The PDS replied disagreeing with the proposed hourly rate. It explained its justification for a higher rate. It said the carers were self employed and carried their own insurance and statutory liabilities. The PDS stated “I am therefore building in appropriate on (sic) costs to support successful team building and retention such as: specialist consultancy support, a sufficient PPE budget, DBS costs, supervision for staff away from support contact time, management time for the team manager, mentoring time for the team manager and bespoke training.”
14. The Council agreed a higher rate of £16.65 per hour for the carers. The PDS signed the Council’s Direct Payment Agreement which stated at paragraph 4 that: “It is the responsibility of the DIRECT PAYMENT RECIPIENT to make arrangements to secure appropriate services, such as the procurement of services or the employment of staff, and to comply with all legal requirements that may arise in making such arrangements. The COUNTY COUNCIL accept no responsibility for any matters that arise as a consequence of these arrangements.”
15. In April 2021 Mrs G sent the Council monitoring information about the use of the direct payments. The Council queried the carers’ invoices which showed training costs as an hourly rate for attending training. The Council said that as the carers were self employed they should not be paid for training. If the training was not authorised, the Council said Mrs G would need pay it back.
16. Mrs G replied she had discussed training with social workers in the previous two years. She said Miss G’s carers required bespoke training for her complex needs and particular circumstances. She explained when Miss G moved into supported living accommodation, her needs were underestimated and were not met.
17. The Council replied that Mrs G should not use the direct payments for training costs. It referred to the email to the PDS in June 2020 where the PDS agreed the higher rate covered bespoke training costs. The Council asked that PDS provided invoices, receipts and bank statements for the period 1 July 2020 to 31 December 2020.
18. In May 2021 the Council emailed Mrs G and the PDS stating that £1396 for training was not covered within the care and support plan and direct payment should not be used for this. It asked Mrs G to repay £1396. It also stated that direct payments should not be used to pay for PPE costs of £261 because carers were self employed and should pay for PPE themselves. The Council asked for further information about other payments from the direct payment account.
19. Mrs G complained to the Council that it had placed an unreasonable burden on her to provide information. It had previously asked for information for earlier periods going back to 2015. She referred to the Care Act 2014 stating Councils should not place a disproportionate reporting burden on service users. Mrs G said this was taking time away from Miss G’s care and time from her own family life.
20. Mrs G said that as the nominated person she needed to ensure Miss G’s support team were experienced and knowledgeable and had sufficient person centred training in order to manage Miss G’s complex needs. While the carers were self employed, they needed to acquire skill sets personalised to Miss G. The carers could not acquire this personalised skills set to enable them to care for Miss G without this training.
21. Mrs G said the Council had not properly considered government guidance regarding The Coronavirus Act, (Guidance for local authorities and clinical commissioning groups in the delivery of direct payments and personal health budgets). This stated that [direct] “payments should continue to be used flexibly and innovatively with no unreasonable restrictions placed on the use of the payment, so long as it is being used to meet eligible care and support needs.” Mrs G also referred to the Care Act guidance (Care and Support Statutory Guidance) which said local authorities should ensure they do not undermine individual choice and control.
22. The Council responded to Mrs G’s complaint that the key point in the Coronavirus direct payment guidance was that the money should be used “as intended to meet agreed outcomes for care, support and improved wellbeing.” It said that the Council had not approved funding for training because carers supporting Miss G had self-employed status and therefore training costs must be met through their own salary or other means. The Council said the PDS confirmed this in June 2020 stating the carers were self-employed and carried their own insurance and statutory liabilities. The Council also said its contracts team had confirmed its hourly rate paid included all overhead costs, including staff training, management costs, PPE and recruitment.
23. The Council noted Mrs G’s complaint about disproportionate monitoring and enquiries. It said it made direct payment recipients aware that they needed to keep records of expenditure. It said it needed to review the direct payments as these had been in pace for some years without review. However, it accepted the issue was complicated given that both PDS and Mrs G had management of the payments. It said it would contact PDS rather than Mrs G unless it was necessary.
24. Mrs G complained further that the training she arranged and paid for was part of the process to reach the agreed outcomes in Miss G’s care plan. Mrs G said the Council had not explained in any advice or documentation that self employed carers could not have training provided. The Council referred to an email to the PDS about the self employed carrying their own liabilities. But in Mrs G’s view this referred to tax and insurance, not training. She explained other providers had not been able to meet Miss G’s needs. The carers needed to have a high level of competency which could only be met by personalised training. Mrs G said the Council’s requests for further information about the direct payment spending remained disproportionate.
25. Mrs G also complained that she had purchased the PPE for carers because it enabled her to have control over its type, suitability and quality.
26. The Council replied that the direct payment agreement signed by the PDS stated that it was the recipient of the direct payment’s responsibility to secure appropriate services may arise such as the procurement of services or the employment of staff. This included training costs. The Council also referred to its email to the DPS in June 2020 which stated that the direct payment could not be used for training costs. However, despite the email Mrs G claimed £1396 for training costs which had not been approved. However, the Council noted that some training may be mandatory, while some other training may be desirable.
27. The Council asked for further information about the training Mrs G arranged. Mrs G provided more details of the courses that carers had attended. The Council arranged a meeting with Mrs G. Following this the Council agreed that certain training was specific to Miss G and the direct payment repayment would be reduced. All the other training was considered generic and should be funded by the self employed carers as part of their ongoing training and development. The Council maintained the cost of PPE was the self employed carer’s responsibility. It referred to information on its website which explained that it was the carers responsibility to provide PPE. However, it pointed out that carers could obtain free PPE via the government’s PPE portal.
28. Mrs G advised me that Miss G’s carers would have used the government free PPE provision, but they could not access it because they were not registered with the Care Quality Commission as they are individuals rather than organisations or companies.
29. In its response to my enquiries the Council confirmed it had not reduced that inappropriate direct payment spending for training as it had agreed. The amount now outstanding for training is £979.

Analysis

30. I consider the Council advised at an early stage that training was a cost that could not be covered by the direct payment. The email communications between the Council and the PDS show that the hourly rate agreed took account of the self employed workers’ statutory responsibilities including training. It was open to Mrs G to check with the Council the personalised training specific only to Miss G, that could be paid for with direct payments, before arranging it. The Council considered all the training that Mrs G had completed and confirmed that some was specific only to Miss G. It is not seeking repayment of this. In my view the Council has properly considered this. I have not seen fault here.
31. I note Mrs G says Miss G’s care and support plan was not adequate because it did not address all Miss G’s needs, in particular that it would be necessary for carers to have personalised training. I have seen the care and support plan for 2021 and it does not refer to specific training needs. I have not seen the 2020 plan but I presume it is similar. While I cannot see that training was raised by Mrs G as an issue in the care plan, I consider that the Council has addressed person specific training in its response to Mrs G’s complaint.
32. The Council delayed correcting the repayment figures, but as it has not pursued recovery while the complaint was outstanding, I do not consider this delay caused injustice.
33. I note Mrs G says that it is not reasonable for the Council to expect self employed carers to pay for their own PPE. However, the PDS email to the Council justifying the hourly rate for carers includes PPE as one of the reasons for a higher rate. I do not consider there is fault here.

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Final decision

34. I have not found fault by the Council. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman