Summary: There is no fault by the Council in its decision to stop a direct payment arrangement for care and support. The Council offered alternative care arrangements, which the service user did not accept immediately. The Council then put in place a managed account. The Council’s decision that the service user has not yet provided enough information on how direct payments have been used has been made without fault.

The complaint

1. The complainant, who I shall call Miss X, complains the Council wrongly decided to stop her direct payments for care costs. She complains the Council has delayed making arrangements for care and support when direct payments were terminated.
2. Miss X also complains the Council did not consider all evidence when making the decision to recover an overpayment of direct payments. Miss X says she is now in debt and her mental and physical well-being has suffered due to significant gaps in care.

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The Ombudsman’s role and powers

3. 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)
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 read the papers put in by Miss X’s legal representative.
6. I considered the Council’s comments about the complaint and any supporting documents it provided.
7. Miss X’s legal representative and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

8. Direct payments are a means of paying some, or all, of the personal budget to a person to arrange and pay for their own care. They are intended to provide independence, choice and control over the way needs are met and outcomes achieved.
9. Council’s need to comply with the Care and Support (Direct Payments) Regulations 2014. There is also detailed guidance in the Care and Support Act 2014 guidance.
10. Direct payments can also be ended if the person is not capable of managing the payment even with support or is not using the funds to achieve the outcomes in the plan. The Council should make sure there are no outstanding contractual liabilities before ending the direct payment, and review the care plan to consider other ways of meeting the needs. It should make sure another service is in place to take over.
11. Council’s must be satisfied the person can manage the direct payment and should take “all reasonable steps” to provide help and support to people to manage the direct payment. Council’s often have arrangements with other organisations to provide this service.
12. The Council must be satisfied the direct payment is used to meet the needs in the plan and therefore should have monitoring systems in place. Councils must review within the initial six months and then annually.

August 2021 to February 2022

13. Miss X received direct payments of £1750 per week from 18 August 2021 to fund day and night care. At the time Miss X signed the Direct Payment agreement she had solicitors to advise her.
14. In October 2021 the Council wrote to Miss X to ask for details of the employment contracts with her carers, DBS checks and insurance.
15. When it did not receive this information, the Council asked Miss X and her solicitor to meet to discuss concerns about managing the Direct Payments. Miss X’s solicitors responded that they were no longer representing her.
16. The Council gave Miss X 4 weeks notice that the Direct Payments would stop as it had not received financial records detailing how she was managing the funds. The Council advised Miss X that it would provide a managed Direct Payment account instead.
17. The Council gave formal notice on 11 February and it stopped the direct payment agreement on 22 February 2022.
18. Section 12.49 of the Care Act guidance says that ‘where it becomes clear that payments, or returns detailing employee information deductions, have not been made, or the individual is failing to meet their obligations as an employer generally, the direct payment scheme should be reviewed and consideration given to whether alternative arrangements that result in the direct payment recipient no longer acting as the employer need to be made’.
19. Section of the 12.67 Care Act guidance says that ‘payments should only be terminated as a last resort, or where there is clear and serious contradiction of the Regulations). Council’s should take all reasonable steps to address any situations without the termination of the payment. Effective, but proportionate monitoring processes will help local authorities to spot any potential issues before a termination is necessary.
20. Section 12.70 says ‘a Council shall stop making direct payments if the person no longer appears to be capable of managing the direct payments or of managing them with whatever support is necessary’.
21. I can find no fault in the Council’s decision to stop the Direct Payments on 22 February 2022. It gave Miss X the opportunity to provide the information it needed to ensure she was managing the payments properly. The Council took the decision, aware of all the relevant information.

February 2022 to August 2022

22. The Direct Payments stopped on 22 February 2022.
23. The Council has said that it offered Miss X support via a managed account direct payment or a commissioned service provider on 25 January, 28 January and 1 March 2022. The Council said that on 1 March 2022 Miss X stated then she wanted no further communication with the Council. 
24. Miss X’s new solicitors accepted a managed account direct payment on 26th August 2022.
25. There was a gap in care provided to Miss X, of 6 months, from 22 February to 26 August 2022.
26. Section 12.68 of the Care Act guidance says ‘if terminating a direct payment, the Council must ensure there is no gap in the provision of care support. Where a decision has been made to stop a direct payment, the local authority should conduct a revision of the care and support plan, or support plan, to ensure the plan is appropriate to meet the needs in question’.
27. The Council emailed Miss X on 1 March 2022. The email said ‘we have offered to arrange for you to continue to receive your direct payment on a managed account basis or to seek to source a commissioned provider for you. We have received no contact from you. These remain options I would be happy to arrange for you, when I receive confirmation from you about which option you wish us to progress. We have previously offered to request an independent advocate for you. You have declined this request and advised you are seeking independent legal advice. We have not received any contact from your new legal adviser. Please do pass our contact details to your legal adviser and ask they contact him as soon as possible. Should you wish for me to request an independent advocate for you, please do let me know so I can progress with these arrangements’.
28. Miss X emailed the Council to say ‘all your doing is affecting my mental health to worsen. And this is the reason I don’t really read much all your letters you guys you sent me because you simply chose not to work with me. So, I leave my solicitors to read them all and act on them’.
29. The Council did not ensure that Miss X’s care continued after it stopped the direct payments. However, it did offer two options for the care to continue. Miss X did not agree to either of these. I find no fault by the Council. It could not force Miss X to accept care if she did not agree.
30. Miss X has said ‘from the time the direct payments ran out, I have been unable to pay carers. I have accrued debt to ensure my care continued, but often had to rely on friends’.
31. The Council said that it ‘remains open to receiving and considering evidence of care costs paid during this period’.

September 2022

32. Miss X has been receiving care under the new arrangement from September 2022 onwards. I find no fault in the Council’s actions from September 2022 as Miss X is receiving care under a managed account direct payment.

Recovery of Direct Payments

33. The direct payment agreement between Miss X and the Council says ‘you will pay back to us any direct payment money which is not used to meet your agreed outcomes as set out in your plan. You will repay the direct payment money to us if you have not met any of the terms of this agreement’.
34. The Council has invoiced Miss X to repay £30,501 of the direct payments.
35. The Council says ‘because it has not been possible to confirm the direct payments have been used to meet Miss X’s agreed care and support plan outcomes, and because she has not complied with the terms of the direct payment agreement, the Council is entitled under the terms of the agreement to seek repayment of direct payment funds. The amount she has been invoiced at this stage is for all the direct payment agreement less two care agency invoices amounting to £14,000. The Council will amend the invoice if satisfactory monitoring information is provided’.
36. The Council has said that ‘personal assistants providing care would usually be paid direct from the customer’s pre-paid card account, and monitoring would be completed by reviewing expenditure on the pre-paid card together with evidence of any additional expenditure. In this case, Miss X withdrew the funds from her direct payment prepaid card account every time a payment was made to her and placed these into another bank account in her name. Miss X also set up a limited company in December 2021 and it appears that Personal Assistants were being paid from this account. Miss X put in redacted personal bank statements but it was not clear from these what was being spent from direct payment funds. The personal assistant wage slips could not be tallied’.  Miss X says the limited company (which has now been dissolved) did not and never had a separate account through which she paid carers or Personal Assistants’.
37. The Council has said ‘it is Miss X’s responsibility under the terms of the direct payment agreement to provide information to substantiate the hours worked, rates of pay and names of carers. She is their employer’.
38. I can see the Council can, under the terms of the direct payment agreement, invoice Miss X the £30,501. The Council has said that it will amend the invoice, if it receives satisfactory evidence Miss X used the direct payments to meet her care and support plan needs.
39. It is for the Council to decide how to monitor the direct payments and/or decide on their repayment. It is not my role to look at each payment and decide whether there is enough evidence Miss X used them to meet care and support plan needs.
40. My role is to look at the Council’s decision making process, to check it has made its decision on whether to recover the direct payments without administrative fault. My view is the Council set out clearly Miss X’s responsibilities in the direct payment agreement. It has looked at the evidence she sent and made a decision on which payments have enough evidence to show they were used to meet care and support plan needs. I can find no fault by the Council. Miss X had the opportunity of a managed account or using the pre-paid card to pay carers which would have shown clearly when she paid carers. Miss X was receiving legal advice when signed the agreement and the Council has given her several opportunities to provide evidence to reduce the repayment.
41. Miss X has explained that having to repay the direct payments will cause her financial hardship. I will ask the Council to ensure it considers this, so it takes her financial circumstances into account.

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Final decision

42. I have completed my investigation of this complaint. This complaint is not upheld, I have found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman