Summary: The investigation into this complaint is discontinued. The Council acknowledged it failed to review Mr Y’s care needs and failed to inform him his direct payments had ceased. It remedied this situation before the complaint came to this office. There is no fault by the Council in its refusal to reinstate direct payments for services not in place or backdate payments for services not received.

The complaint

1. Mr Y complains that the Council has stopped his direct payments without consulting him and refused to backdate stopped payments. He also complains the Council failed to review his care needs between 2017 and 2021.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome (Local Government Act 1974, section 24A(6))

3. 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

4. I considered the written complaint submitted by Mr Y together with the Council’s complaint response, and information it submitted to our assessment team.

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What I found

5. Mr Y has a progressive medical condition. He has been in receipt of direct payments from the Council since 2016. He signed a direct payment agreement which set out the terms and conditions. Alongside this he received a copy of a care & support plan which contained a breakdown of the support he required. The payments funded 17.5 hours per week support, which included a personal assistant, a gym membership, respite, and an allowance towards travel to see family.
6. The Council asked Mr Y to provide documents to enable it to audit the direct payment account in January 2018, March 2018, July 2018, April 2019, September 2019, and October 2019. On each occasion Mr Y responded saying he was experiencing some difficulty but said he would provide the documentation requested.
7. The Council did not receive the information, so it sent a final email to Mr Y on 2 September 2020 saying the direct payments would be suspended unless Mr Y provided the information. Mr Y provided the information to the Council on 5 October 2020.
8. The Council completed an audit of the direct payment account on 14 October 2020. It found Mr Y had not had a personal assistant in employment since December 2018. It also identified unauthorised spending and cash withdrawals from the direct payment account.
9. The Council stopped the funding for a personal assistant from 18 November 2020, but it continued to fund the other elements of support.
10. The Council decided not to recoup the unauthorised spending. However, it changed the way Mr Y paid for services and issued him with a pre-payment card. Using this method means Mr Y does not have to provide documents to the Council for auditing.
11. Mr Y says he was not informed his direct payments had ceased and only discovered this when checking his bank statements. He contacted the Council’s finance team who told him it had been instructed to stop the payments without explanation. Mr Y says this left him vulnerable in a potential liability position towards any financial and contractual commitment with no resources. He asked the Council to reinstate the payments and backdate them to the date they were stopped. The Council refused.
12. Mr Y was dissatisfied and submitted a formal complaint to the Council saying he had “…no support over a number of years, no reviews of his care plan (with the exception of a partial review in June 2017), no audits done whatsoever, authorisation for some payments from my social worker which they then tried to recover as unauthorised payments and no contingencies made during Covid19 etc”. He said he had struggled to recruit a personal assistant and he did not wish to use a care agency for support. He said the pandemic allowed for more flexible use of direct payments, that he understood direct payments to be about choice and flexibility. And the Council was denying him this right.
13. I have had sight of the Council’s complaint response. The author of the letter acknowledged a social worker had failed to inform Mr Y that the funding for a personal assistant had ceased, and that an apology for this had been given. By way of a remedy a review of Mr Y’s needs had been offered and completed. The officer set out the reasons why the payment had been stopped and that funding would not be reinstated until a personal assistant was in place. She also said the Council would not backdate stopped payments because the services had not been received.

14. Following the review of Mr Y’s needs, the Council agreed to re-start payments for a personal assistant when one had been recruited. It advised Mr Y he could use a care agency whilst he was without a personal assistant.

Analysis

15. The Council acknowledges it failed to review Mr Y’s care needs in line with the Care Act, and that it failed to inform Mr Y part of direct payment had ceased. It apologised for these failings before the complaint came to this office. I consider this adequate and any further investigation by this office would achieve no more.
16. In respect of the ceased direct payment. The Council was entitled to cease payments for services Mr Y was not using regardless of the reason why. The payments were to fund a personal assistant, Mr Y did not have a personal assistant. The Council has made clear it will reinstate payments when a personal assistant has been recruited. There is no fault by the Council here.
17. As a recipient of direct payments, it is Mr Y’s responsibility to recruit a personal assistant, if he has difficulty doing so, then he can use a care agency. He is entitled not to do so, but that does not mean the Council is failing to meet its obligations under the Care Act. In offering a care agency, the Council discharged its legal duty. There is no fault by the Council here.
18. Because Mr Y has not recruited a personal assistant does not allow him to spend his direct payments in the way he believes. The direct payment agreement clearly states the payments should be used in line with the agreed support plan. Whilst there should always be flexibility, this does not allow for spending as one chooses. There is no fault by the Council in its decision not to reinstate direct payments for services not in place or backdate payments for services not received.

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Final decision

19. The investigation into this complaint is discontinued. The Council acknowledged it had failed to review Mr Y’s care needs and failed to inform Mr Y his direct payments had ceased. It remedied the situation before the complaint came to this office. There is no fault by the Council in its refusal to reinstate direct payments for services not in place or backdate direct payments for services not received.
20. Any further investigation by this office could achieve no more than that achieved by the Council.
21. It is on this basis that the complaint will be closed.

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Investigator's decision on behalf of the Ombudsman