Summary: The Council failed to advise the complainant in enough detail and clarity about recouping direct payments. It also failed to provide advice notes for money paid into the complainant’s direct payment account. To remedy the complaint the Council has agreed to apologise to the complainant, pay him £150 for the uncertainty and anxiety the Council’s actions caused him. It will also review procedures about the process for recouping a surplus and remind staff of the steps to take in situations such as these.

The complaint

1. The complainant who I refer to as Mr C, complains the Council inappropriately and without warning recouped direct payment money from his bank account. Mr C complains the Council failed to follow its own policies and did not consider reasonable adjustments when communicating with him.
2. Mr C says both the Council’s decision to claw back money and the way in which the Council communicated its decision caused him anxiety.

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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 spoke with Mr C and considered information he sent. I made enquiries of the Council asking for information and questions about how it made decisions. I considered:-
• the Council’s response;
• Mr C’s original complaint;
• the Council’s, “Direct Payments” policy 2016 last reviewed in September 2021;
• email communication between Mr C and the Council and between officers at the Council
• relevant legislation detailed below.
6. Mr C 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

Background information

7. Mr C lives in the community and has money from the Council to pay towards his care needs which arise out of a physical disability. This money is known as a direct payment. The Council approved the direct payment in January 2021.

What should have happened

8. The Councils “Direct Payment” policy, “the Policy” says at paragraph 3.37 that it has developed “proportionate financial monitoring arrangements to fulfil its responsibility to ensure that the Direct Payments, which are public funds, have been spent as agreed in the plan”. Paragraph 3.38 says social care reviews will occur six months after the start of a direct payment and then yearly.
9. Paragraph 3.41 of the Policy says the Council will ask the recipient to repay some or all of the Direct Payments when there are more funds in the account than needed. For adults it defines a surplus of greater than four weeks of Direct Payment monies.
10. It also says, “If a service user has repaid money and subsequently requires it within the following 12 months, a request can be made to the Direct Payments team. The team will aim to return the funds within 3 working days of being appropriately notified.”
11. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity.
12. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. One of the protected characteristics referred to in the Act is, disability.
13. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
14. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.

What happened

15. The Council reviewed Mr C’s direct payment account three times. On a fourth review in August 2022 it increased Mr C’s direct payment to just over £672 per week. Mr C says the amended amount went into his direct payment account from 2 September 2022. The next review, on 8 November was an office based direct payment review. A Direct Payment (DP) officer records she called Mr C and told him of a direct payment surplus of more than four weeks of care which the Council would need to recoup.
16. She records Mr C saying he needed the money to cover overheads, and to pay for additional care needs. Mr C says he did not say “overheads” but was trying to explain to the officer that his needs had increased, and he needed the additional funds to pay for additional care costs. Mr C says until this point no one had ever mentioned recouping money, and this made him very anxious.
17. The DP officer records that she told Mr C she would consider additional costs such as insurance, but the Council had already increased Mr C’s direct payment to meet his extra needs. Mr C asked the DP officer to speak to his friend who was with him at the time as he was getting anxious and confused. The DP officer refused as he was not an appointee or recorded to manage Mr C’s finances. The DP officer told Mr C to talk to his social worker. The DP officer told Mr C she would wait to hear from the social worker before recouping money but would send out a letter about the Council’s intention to claw back funds. Mr C says he asked the officer to put what she had said in a letter but she refused.
18. The Council records and has provided a copy of a letter it says it sent Mr C the same day. Mr C says he never received this letter. The letter said, “Following the review of your records the balance on your Direct Payment PFS prepayment card exceeds the agreed balance, therefore I have made arrangements for the surplus to be recouped”. The letter did not include any detail of the conversation between Mr C and the DP officer.
19. The records suggest Mr C liaised with his social worker who agreed a further increase of his direct payments to £725.26. The social worker told Mr C an extra hour a week could come from the surplus for the next twelve months. An Independent Living Adviser provided Mr C and his social worker with a detailed costing. The social worker provided the same information to the DP officer asking for £4089.80 to remain in the direct payment account. The Council took back £8626.56.
20. Mr C complained to the Council about the way in which it had recouped the money, the lack of remittances and his contact with the DP officer. The Council responded to Mr C’s complaint.
• it accepted and apologised for failing to provide remittances in December, January, and February but these were due to an upgrading system error. It said it would resolve this for February. However following his complaint Mr C says he has had to chase for remittances and the situation has not improved;
• it said it had recovered £8626.56 of direct payment money leaving a balance of £5400.48. This was to cover ten weeks of care, and contingencies like sickness and annual leave of personal assistants;
• apologised for the DP officer’s reluctance to speak to Mr C’s friend and the anxiety the call caused Mr C. It said it would address these issues with the officer involved.

Is there fault causing injustice?

21. The Council has a duty to protect the public purse and its decision to recoup money is in line with that duty. However in doing so it must follow a clear process so recipients can understand how the Council has reached the decision. The Council should also warn recipients before recouping money so they can, if necessary, challenge the Council’s decision.
22. The DP officer wrote a detailed record of the telephone conversation with Mr C during which she forewarned him about a potential clawback of money. The DP officer listened to Mr C’s concerns about added care and said she would liaise with the social worker before making a final decision as this was a decision she could not make. I find no fault in the DP Officer’s actions. She considered what Mr C said and told him about the actions she intended to take.
23. The Council has accepted fault, apologised, and taken other measures to address the failure of the DP Officer to speak to Mr C’s friend. There was no reason, given Mr C’s consent, the DP officer could not speak to Mr C’s friend. Although the Ombudsman is unable to say whether there has been a breach of the Equality Act the Council should be mindful that Mr C’s request for the DP officer to speak to his friend could have amounted to a need and request for a reasonable adjustment; which in this situation does not appear unreasonable.
24. There was liaison between the Direct Payment department and the Mr C’s social worker about Mr C’s needs. However, the Council has not provided Mr C with a clear explanation about its calculations and the amount it decided to recoup. This has caused Mr C confusion. Because of these failures Mr C was caused unnecessary stress and anxiety.
25. The Council has apologised to Mr C for the failure to provide remittances over a two month period. This however has been a continuing problem and despite reassurances by the Council, and Mr C repeatedly raising concerns he has still not received regular remittances. This causes him anxiety as he will only pay care staff once he knows the Council has paid money into his direct payment account.

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Agreed action

26. I have found fault in the Council’s actions which has caused Mr C avoidable time, trouble, and anxiety. To remedy the complaint the Council has agreed to take the following actions.
27. Within one month of the final decision:-
1. apoloigse to Mr C for the way in which it communicated and the process it followed in recouping money from his direct payment account;
2. pay Mr C £150 a symbolic payment in recognition of his time, trouble and the anxiety the Council’s failures have caused him;
3. provide Mr C with any remittances that are due, advise Mr C about when he should expect to receive future remittances and contact Mr C monthly to ensure he has received that month’s remittance;
4. provide Mr C with a statement that explains how much surplus can remain in Mr C’s direct payment account.
28. Within three months of the final decision the Council should:-
1. review the Direct Payment Policy to ensure there is sufficient detail about what steps officers should take when the Council intends to recoup surplus monies for transparency and to avoid confusion;
2. advise staff and if necessary, provide training about any changes in the Direct Payment Policy;
3. remind staff of the proactive duty to provide reasonable adjustments;
4. review processes for issuing remittances to ensure they are fit for purpose. Once this is completed, sample check 30 direct payment recipients to ensure they have received their remittance.
29. The Council should provide us with evidence it has complied with the actions above.

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Final decision

30. I have found fault in the actions of the Council which have caused Mr C injustice. I consider the agreed actions above are suitable to remedy the complaint. I have now completed my investigation and closed the complaint on this basis.

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Investigator's decision on behalf of the Ombudsman