Summary: Mrs X complained the Council failed to support her with her direct payment account and incorrectly suspended her payments. We do not find fault in the way the Council supported Mrs X and the steps in its decision making to suspend Mrs X’s account and offer her commissioned care services. We therefore cannot question the merits of its decision.

The complaint

1. Ms X complains about the Council’s handling of her direct payments, she says it:
1. Failed to support her with managing her direct payment account.
2. Incorrectly determined she had misused her direct payments.
3. Incorrectly suspended her direct payment and offered commissioned care services which she does not feel comfortable to use.
2. Mrs X says she was consequently left in substantial debt which she cannot afford to pay. She says she was also left without care which caused her distress.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I have considered all the information Mrs X provided and discussed the complaint with her; the Council’s comments about the complaint and the supporting documents it provided; and the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
7. Mrs X 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

Law and guidance

8. Councils can charge for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14).
9. Everyone whose needs the council meets must receive a personal budget as part of their care and support plan. The personal budget must be an amount that is sufficient to meet the person’s care and support needs.

Direct payments

10. Direct payments are made to individuals who ask for money to meet some or all of their eligible care and support needs. They enable people to arrange and pay for their own care and support to meet their eligible needs.
11. The Guidance says councils must ensure people have relevant and timely information about direct payments. This should include:
• what a direct payment is;
• an explanation of how the council will monitor the use of the direct payment;
• the making of arrangements with social care providers; and
• signposting to local organisations and the council's own internal support who offer help to direct payment holders and who have information on local social care providers.
12. If the person wants direct payments, councils should support them to use and manage the payment properly. The Guidance says this should include help for people to ‘micro-commission’ care services from local providers. Micro-commissioning is where services are arranged to meet a specific person’s needs.
13. The Care and Support Statutory Guidance also says councils 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.
14. Councils must be satisfied the direct payment is used to meet the needs in the plan and therefore should have monitoring systems in place. They must review the direct payments within the initial six months and then annually.

The Council’s direct payments policy

15. The Council’s policy says:
• Users must use their direct payments to meets the assessed needs as described in their care and support plans. The funds are not authorised for other purposes and may be recouped in the event of misuse.
• The Council has a responsibility to ensure service users, or their authorised person has access to support to manage their direct payments and the level of support is proportionate to their needs and is reviewed.
• The Council offers support to those needing help with their managed accounts through its contract with a third party (the Disability Resource Centre).
• Direct payments are subject to reviews and financial monitoring with reviews within first 6 months and thereafter annually, but unscheduled reviews can also take place.
• In cases, where the Council believes (on a balance of probabilities) there has been misuse the person will no longer be eligible for direct payments. The Council will then suspend the account and instigate measures to recoup any misused funds.

What happened

16. Mrs X has multiple health conditions. She has required home care since her late husband passed away in 2017.
17. The records say Mrs X opted to receive direct payments (DP). She arranged her own care with a personal assistant known to her, as she was more comfortable with the situation.
18. In May 2019, the Council conducted a direct payment review and found Mrs X had a shortfall of approximately £2,340. The Council records say Mrs X agreed to pay back the debt at £200 per month instalments.
19. However, Mrs X could not sustain the repayment amount. In November 2019, the Council lowered the amount to £100 per month due to Mrs X’s financial hardship. The Council explained Mrs X’s repayments were inconsistent and eventually stopped completely. However, it noted Mrs X was continuing to withdraw and use newly deposited DP funds.
20. In February 2022, the Council noted Mrs X had failed to pay back the DP shortfall debt and provide outstanding evidence of her subsequent expenditure. It calculated a new shortfall of approximately £7922 (‘the shortfall amount’) which she had not accounted for, and it decided to suspend her DP account.
21. In the following months, the records show Mrs X sent the Council evidence of her expenditure including her carers wage slips, tax receipts, bank statements and other general expenses records. However, the Council found Mrs X still had not fully accounted for the shortfall amount.

Mrs X’s complaint

22. In July 2022, Mrs X complained to the Council about the issues she has raised with us.

The Council’s complaint responses

23. In its stage one response, the Council said:
• It suspended Mrs X’s DP as she failed to send sufficient evidence of her expenditure. Mrs X’s receipts did not account for the shortfall amount and explain where this money had been spent.
• Mrs X explained the shortfall amount was spent on personal protective equipment (PPE) during COVID-19. However, the Council explained it had a dedicated service set up for these items through its arrangement with the Disability Resource Centre (DRC) and she would have been aware of the service due to continued contact.
24. In its stage two response, the Council said:
• Mrs X still had not provided the outstanding evidence, which also needed to show the DP was spent in line with her care and support plan to reduce the debt amount.
• Mrs X had been assisted throughout with her DP by her brother (Mr N) and the DRC As such, she clearly understood the terms and condition of using the DP funds.
25. Unhappy with the Council’s response Mrs X approached the Ombudsman.
26. Mrs X told me, she:
• Provided the Council with all the receipts in her possession.
• Had to use some of her DP money to purchase hand gels, PPE equipment and taxi’s during the COVID-19 pandemic. She said she was not aware of the Council having an alternative PPE dispensing system.
• Also needed other personal items due to her medical issues and she purchased sanitary items with some of the funds.
• Was unhappy the Council did not review her DP earlier instead of allowing the debt to become substantial amount before suspending her account.

Council’s response to our enquiries

27. The Council has provided evidence to show:
• It correctly calculated Mrs X’s debt amount having taken into consideration Mrs X’s submitted receipts.
• Mrs X was aware of the terms and conditions of managing her direct payments and the Council’s policy. These were provided in written form, explained to Mrs X at the point she started receiving payments and at subsequent reviews.
• It provided Mrs X with support managing her DPs through the Disability Resource Centre (DRC) and discussions with Mrs X’s brother and Mrs X at key stages. Mrs X never raised any concerns during reviews or asked for her account to be managed by the Council.
• It did not delay in addressing Mrs X’s shortfall debt as she was aware of the situation from 2019 and agreed a repayment plan. However, she later defaulted and delayed providing key information including wage slips and tax returns. This meant the Council could not provide her with an updated shortfall amount until 2022.
• The Council arranged commissioned care services for Mrs X after her DPs were suspended but she declined the care.

Was there fault and did it cause injustice?

i) Mrs X says the Council failed to support her with managing her direct payment account.

28. The available evidence shows the Council took steps to explain the direct payments (DP) process and Mrs X’s duties to her before she started receiving payments. The Council’s records show the arrangement was reviewed at six months and annually thereafter. The Council has explained Mrs X’s contact would have been with the Disability Resource Centre (DRC) and the evidence seen indicates Mrs X had contact with the service at key times to help with collating information and dealing with enquiries. The evidence also shows the DRC assisted Mrs X with submitting the evidence after the Council discovered a shortfall in 2019 and subsequently in 2022. I find the Council supported Mrs X in line with its duties under the statutory guidance as set out at paragraphs 13-14 and its DP policy at paragraph 15 (above) and do not find the Council at fault in relation to this aspect of Mrs X’s complaint.

ii) Mrs X says the Council incorrectly determined she had misused her direct payments

29. The available evidence shows the Council confirmed Mrs X understood the terms and conditions of using her DP funds. The Council’s DP policy as explained at paragraph 15 (above) explains the circumstances in which it may reach a conclusion about misuse of DP funds. This includes instances where the payments are not accounted for and/or used for purposes outside the users care plan. The policy states it reaches conclusions on a balance of probabilities considering any evidence provided. The records show the Council took time to explain the situation to Mrs X, gathered necessary evidence, raised enquiries to understand Mrs X’s finances and her explanation for the shortfall amount. Ultimately the Council decided, Mrs X had misused her payments. That is a decision the Council is entitled to reach. I did not find fault in the Council’s decision-making process and therefore cannot question the merits of its decision.

iii) Mrs X says the Council incorrectly suspended her direct payments and offered commissioned care services which she does not feel comfortable to use.

30. The Council’s direct payment policy at paragraph 15 (above) clearly states that it may suspend direct payments if it concludes funds have been misused. In Mrs X case, there was a shortfall of £7922. The Council believes Mrs X used these funds for purposes outside her care and support plan. Mrs X has explained that this was partially the case because of the COVID-19 pandemic. She said she had to use the funds for emergency items and travel as explained at paragraph 27 (above). While I sympathise with Mrs X’s difficulties, the Council explained the PPE and sanitisation equipment was readily available via its arrangement with the Disability Resources Centre with which Mrs X was familiar. Mrs X also mentioned other expenses such as emergency travel and sanitary products, but these are additional care needs which Mrs X should have raised with the Council separately if she needed further assessment of her needs at the time.
31. The evidence shows the Council provided Mrs X with suitable opportunities to explain her expenditure and provide supporting evidence. There was some delay by Mrs X in sending these through due to her health conditions. However, having considered the evidence the Council concluded Mrs X had misused her DP and decided to suspend her DP account. The Council’s decision making was in line with the statutory guidance at paragraph 14 (above). This says the Council must be sure the person can suitably manage their DP account and its DP policy (paragraph 15) also says if it believes there is misuse, it may suspend the account and enforce the debt. Having suspended Mrs X’s DP account, the Council reviewed and offered Mrs X commissioned services, but she declined. I do not find fault in the steps taken by the Council to determine if Mrs X had misused her DP funds, to suspend her DP account, and offer commissioned services. I therefore cannot question the merits of its final decision.

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Final decision

32. I do not find the Council at fault in the way it supported Mrs X with her direct payments or in the steps in its decision making to suspend Mrs X direct payment and offer her commissioned care.
33. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman