Summary: Mr X says the Council delayed pursuing an alleged debt, wrongly pursued the debt when he had provided evidence of how he spent the money, wrote to him at the wrong address and should not have instructed bailiffs when it knew he was vulnerable. The Council was not at fault for pursuing the debt and considered Mr X’s vulnerability when referring the case to bailiffs. The Council delayed seeking repayment of the money and wrote to Mr X at the wrong address. An apology, payment to Mr Y, agreeing a payment plan and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr X, is represented by his father, whom I shall refer to as Mr Y. Mr X complained the Council:
• delayed pursuing him for an alleged debt when he had been led to believe it was resolved as he had provided sufficient evidence of how he spent the money;
• wrongly wrote to him at an address it knew he was not living at; and
• instructed bailiffs when it knew he was vulnerable.
2. Mr X says the situation has caused him and his family significant stress and they feel harassed.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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

7. As part of the investigation, I have:
• considered the complaint and Mr Y's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Mr X, Mr Y and the organisation 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

What should have happened

9. The Care and Support Statutory Guidance (the statutory guidance) says the law allows a direct payment to be made to a nominated person acting on behalf of the adult. (paragraph 12.15)
10. The statutory guidance says it is a condition that the council must be satisfied the person (the adult or their nominated person) is able to manage the direct payment by themselves or with help and support. (paragraph 12.21)
11. The statutory guidance says the council must be satisfied the direct payment is used to meet the needs set out in the care and support plan and should have systems to monitor the payment to ensure effective use of public money. (paragraph 12.24)
12. The statutory guidance says as well as monitoring direct payments to ensure their proper use, councils need to review the direct payment at least every 12 months to ensure the person is comfortable with it and is not experiencing any issues. This review can happen at the same time as the review of the care and support plan. (paragraph 12.64)
13. The statutory guidance says the review needs to include the nominated person. (paragraph 12.65) It should be written and a copy given to all the parties. Where there are issues that need resolving, the method to resolve them should be agreed with all the parties as far as is reasonably practicable. (paragraph 12.66)
14. The direct payments agreement (DP agreement) Mr Y signed on Mr X’s behalf says the Council will carry out regular review and a regular financial audit to check the direct payment is being used properly as agreed.
15. The DP agreement says the recipient agrees to use the direct payment in the way that has been agreed and if they want to change the way they use it they must tell the Council so it can decide if the new way is acceptable.
16. The DP agreement says the recipient must keep financial records including bank statements, receipts and invoices to show how the money has been spent.
17. The DP agreement says the recipient must comply with the financial audit and repay any unspent or misused money on request.

What happened

18. Mr X has a learning disability and autism. Mr Y is Mr X’s father and is his appointee. In 2018 the Council set up direct payments for Mr X. The direct payments were to cover taxi costs and to identify and access opportunities for social and leisure activities. The aim was to promote Mr X’s development, engage in activities and provide him with stimulation to prevent social isolation.
19. After the Council became aware of concerns about how Mr X was spending the direct payment it began an audit at the end of 2019. Mr Y provided the Council with as many receipts as he could find. Following the audit the Council had concerns about some of the receipts provided and the lack of receipts for the entire amount spent. The Council wrote to Mr X on 21 January 2020 to outline its concerns. The Council explained as it had not allowed some of the receipts Mr X needed to return £9,987.89.
20. Mr Y provided further receipts. The Council wrote to Mr X on 11 February 2020 to tell him after considering those receipts it had reduced the amount that had to be repaid. That amount was now £8,669.17. Mr Y returned £6,000 to the Council. He told the Council he had used the remaining amount for expenses while Mr X was in hospital.
21. The Council sent a reminder for the outstanding amount on 4 March 2020, followed by a final reminder on 18 March.
22. The Council placed recovery of all debts on hold between April and September 2020 due to COVID-19.
23. The Council issued further reminders to Mr X on 11 October, 25 October and 8 November 2020. Mr Y contacted the Council and said he did not believe Mr X owed any further money. The Council explained the amount outstanding related to misuse of funds.
24. In April 2021 the Council considered whether it was appropriate to refer the debt to the bailiffs as Mr X was vulnerable. The Council decided that was appropriate as Mr Y was managing the direct payment as Mr X’s appointee. At that point the Council noted Mr X had moved to a temporary address. The Council says it sent an invoice to that address to prompt contact although I do not have a copy of that invoice.
25. The Council reviewed the case again in August 2022 and referred it to the bailiff. The bailiff wrote to Mr X at his temporary address on 15 August, 30 August and 13 September. Those letters sought repayment of £8,669.17.
26. Mr Y telephoned the Council on 13 September. Mr Y pointed out he had repaid £6,000 but would agree a repayment plan for the remaining money. The Council set up a payment plan of £50 per month. The Council confirmed the outstanding amount was £2,669.17. The Council took the debt back from the bailiffs. After making some payments the amount outstanding is now £2,169.17.
27. Mr Y put in a complaint raising concerns about the recovery action and the Council writing to Mr X at a temporary address. In response to that complaint the Council apologised for including the wrong outstanding amount in its letters and for writing to the temporary address. The Council told Mr X the remaining amount outstanding was still due and he needed to follow the payment plan already agreed.

Analysis

28. I am exercising the Ombudsman’s discretion to go back to 2020 as I am satisfied Mr X complained to the Ombudsman within 12 months of the Council contacting him to pursue the outstanding debt in 2022.
29. Mr X representative says the Council delayed pursuing Mr X for an alleged debt when he believed it had been resolved as he had provided the Council with sufficient evidence to show how he had spent the money.
30. The evidence I have seen satisfies me the Council identified issues with how Mr X’s direct payment had been spent at the end of December 2019. The evidence I have seen satisfies me Mr Y provided receipts to the Council but acknowledged those receipts did not cover the full amount. I am satisfied the Council decided some of the receipts showed expenditure for items which were not covered by Mr X’s care plan. The Council therefore told Mr Y it intended to seek recovery of the amount for which it had not received receipts and the amount it was not allowing.
31. I appreciate from Mr Y’s point of view he believes he provided the Council with sufficient evidence of expenditure and it should not recover any money. However, the Council takes a different view. As I said in the previous paragraph, the Council has not allowed some of the expenditure as it is not satisfied it is expenditure agreed as part of the care plan. As the Council has reached that decision properly there are no grounds on which I could criticise it.
32. Nor can I criticise the Council for deciding to recover the amount for which it has not received any receipts. I am satisfied when agreeing to the direct payment Mr Y signed to accept he needed to keep evidence of expenditure. Mr Y’s own communications with the Council show he accepts he could not provide receipts for all the expenditure. In those circumstances I cannot criticise the Council for seeking to recover the outstanding money. That now totals £2169.17.
33. I am concerned though about the significant gaps in contact about the outstanding debt. I do not criticise the Council for any lack of communication between April and September 2020. That is because councils had to amend their ways of working during COVID-19. However, I am concerned there is no evidence the Council took any action to recover the debt between December 2020 and September 2021 or between September 2021 and August 2022. Those are significant gaps. It is unsurprising in those circumstances Mr Y believed the Council did not intend to pursue the debt further. Delays communicating with Mr X and Mr Y about the outstanding debt is fault.
34. There is no evidence in the documentary records though to show the Council agreed to write off the remaining amount outstanding. As I said earlier, the Council’s decision to continue to recover the debt is not one the Ombudsman can comment on as there is no evidence of fault in how it has been reached. Given the delays that have taken place though I would expect the Council to have offered a monthly repayment plan. I note the Council did that in 2022, which I welcome. As part of the remedy for this complaint I recommended the Council contact Mr Y to agree a repayment plan going forward. The Council has agreed to that recommendation.
35. I have other concerns with how the Council managed this case though. First, I note when the Council decided to continue with enforcement action in August 2022 it referred the case straight to the bailiffs. At that point the Council had not communicated with Mr X or Mr Y about the outstanding debt since September 2021 which is almost 12 months. In those circumstances I would have expected the Council to write to Mr X and Mr Y to give them one further opportunity to repay the outstanding debt or agree a payment plan. Failure to do that is fault.
36. Mr Y also says the Council should not have sent the case to the bailiffs as Mr X is a vulnerable adult. I would expect the Council’s enforcement procedure to include a section detailing how the Council will deal with vulnerable debtors. The Council does not have that in its current enforcement procedure.
37. In this case though I am satisfied the Council properly considered whether to pursue the debt due to Mr X’s vulnerability. The evidence I have seen satisfies me the Council decided it was appropriate to continue to recover the debt despite Mr X’s vulnerability as Mr Y was dealing with his direct payments for him. So, I am satisfied the Council considered Mr X’s vulnerability before referring the case to the bailiffs. Nevertheless, I recommended the Council consider including in its enforcement policy how it will deal with vulnerable debtors. The Council has agreed to that recommendation.
38. I am concerned that when writing to Mr X the bailiff used a temporary address which Mr X and Mr Y were no longer living at. Given the information available to the Council in 2020 and 2021 was that Mr X was staying at that address temporarily I would have expected the Council to check the current address before writing to Mr X. Contacting Mr X at the temporary address is therefore fault. The bailiffs also sought recovery of an incorrect amount of money as the amount failed to recognise Mr Y had paid £6,000 against the debt. Failing to provide the bailiffs with details of the correct amount outstanding is also fault.
39. Mr Y is concerned about the Council’s communications both in terms of its writing to Mr X and in writing to the temporary address. Mr Y says if Mr X had opened the letters this would have caused him significant distress. I am satisfied though that in writing to Mr X the Council addressed the letters to Mr X care of Mr Y as it had with all previous communications. I therefore do not criticise the Council for the way it addressed its letters.
40. I now have to consider what injustice Mr X and Mr Y have experienced because of the faults in this case. I am satisfied the main injustice is to Mr Y as he dealt with all the communications with the Council. I am satisfied the fault in this case caused Mr Y to have to go to time and trouble to pursue matters with the Council. I am also satisfied he experienced distress. As remedy for that I recommended the Council apologise and pay Mr Y £300. That amount should be paid directly to Mr Y, rather than deducted from the amount outstanding. That is because the amount outstanding is Mr X’s debt rather than Mr Y’s and the injustice here is to Mr Y. The Council has agreed to that recommendation.
41. I also recommended the Council remind officers dealing with recovery of debts to ensure the up-to-date address is checked before communication is made with the debtor. In addition, officers should be reminded if there are gaps in communication when recovering a debt the Council should consider whether it is appropriate to write to the debtor one final time before referring the matter to bailiffs. The Council has agreed to that recommendation.

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Agreed action

42. Within one month of my decision the Council should:
• apologise to Mr X and Mr Y for the distress and upset they experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mr Y £300;
• discuss with Mr Y agreeing a payment plan;
• send a reminder to officers dealing with debtors to remind them to check the up-to-date address before writing to a debtor and to consider whether it is appropriate to give the debtor one final opportunity to make payment before the debt is referred to bailiffs where there have been significant gaps in contact from the Council.
43. Within three months of my decision the Council should review its enforcement policy to ensure it includes a section on how to deal with vulnerable debtors.

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Final decision

44. I have completed my investigation and found fault by the Council in part of the complaint which caused Mr X and Mr Y an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman