Summary: Mrs F complained about the Council’s decisions to put her on a managed direct payment in early 2023 and to suspend her direct payment from June 2023. She said this caused her distress, financial loss, and impacted her physical and mental health. We found no fault in the process the Council followed to audit Mrs F’s direct payment account, nor its process to suspend her payment due to her studying abroad. This was in line with its Direct Payment Policy. It was therefore entitled to reach its views.

The complaint

1. The complainant, whom I shall refer to as Mrs F, complained about the Council’s handling of the arrangements in place to meet her assessed adult social care needs. She said the Council wrongly:
• decided to end her direct payment when she went abroad to study at university and found her circumstances were not exceptional;
• forced her to receive a managed direct payment. Although, it has since agreed to continue her direct payment when she is in the UK;
• calculated her direct payment and deducted an overpayment in full of her direct payment in Autumn 2023;
• calculated her financial contributions since 2016 which may have resulted in the debt the Council is recovering from her.
2. Mrs F also disputed the financial assessment completed by the Council in September 2023.
3. Mrs F said, as a result, she experienced distress, uncertainty, and financial loss. She said this had negatively impacted her mentally and physically.

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The Ombudsman’s role and powers

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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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. 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)
7. 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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What I have and have not investigated

8. I have considered Mrs F’s complaint about the Council’s handling and decisions of:
• changing her direct payment to a managed direct payment from November 2022; and
• suspending her direct payment due to her studies abroad from March 2023.
9. I have not investigated Mrs F’s complaints about:
• her disagreement with the Council regarding historical debts on her direct payment account from before 2022. This part of her complaint is late as it occurred more than 12 months before it was bought to our attention, and I have seen no good reason why she could not have brought this to our attention sooner.
• the Council’s calculations of her direct payment relating to Summer 2023 and its September 2023 financial assessment, including the deductions it made. This is because this was not part of her original complaint to the Council. If Mrs F continues to disagree with the Council’s view after it has considered her concerns through its complaints process, she can bring the matter to our attention.

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How I considered this complaint

10. As part of my investigation, I have:
• considered Mrs F’s complaint and the Council’s responses;
• discussed the complaint with Mrs F and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• considered the law, guidance and policy relevant to the complaint.
11. Mrs F 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

Relevant law, guidance and policy

Care Plans and personal budgets

12. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
13. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The detail of how the person will use their personal budget will be in the care and support plan.
14. A personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The personal budget must always be enough to meet the person’s care and support needs.
15. There are three main ways a personal budget can be administered:
• as a managed account held by the council with support provided in line with the person’s wishes;
• as a managed account held by a third party with support provided in line with the person’s wishes; or
• as a direct payment.

Direct payments

16. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.
17. 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.

Financial assessments

18. Councils must assess a person’s finances to calculate how much an individual should contribute to the cost of their care. The assessment must comply with the principles in law and guidance, including that charges should not reduce a person’s income below Income Support plus 25% (also known as the minimum income guarantee).
19. If a person incurs expenses directly related to any disability he or she has, the Council should take that into account when assessing his or her finances. This is called disability related expenditure (DRE).
20. The Care and Support Statutory Guidance sets out key principles the councils should take into account when making decisions on charging. The principles include that the approach to charging should be clear and transparent, so people know what they will be charged.

Ordinarily Residence

21. Sometimes councils have to decide between themselves which organisation has to meet someone’s eligible care needs under the Care Act 2014. They do this by deciding where the person is ‘ordinarily resident’. There is no definition of ordinarily resident in the Care Act, therefore, the term should be given its ordinary and natural meaning.
22. The courts have said this means where someone normally lives “as part of the regular order of [their] life, for the time being, whether of short or long duration” [Shah v London Borough of Barnet (1983)]. Where doubts arise about a person’s ordinary residence, it is usually possible for councils to decide that the person has been in one place long enough, or has firm enough intention towards that place, to have acquired an ordinary residence there. Sections 18 and 20 of the Care Act 2014 says a council must meet the eligible needs of people if they are present in its area but are of no settled residence. In this regard, people who have no settled residence, but are physically present in the council’s area, should be treated in the same way as those who are ordinarily resident.

The Human Right Act 1998

23. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to life, freedom from torture and inhuman or degrading treatment or punishment, liberty and security of person, a fair hearing, respect for private and family life, freedom of expression, freedom of religion, freedom from forced labour, and education. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
24. The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
25. In practical terms, councils will often be able to show they are compliant with the Human Rights Act if they consider the impact their decisions will have on the individuals affected and that there is a process for decisions to be challenged by way of review or appeal.

Equality Act 2010

26. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
27. 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. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty. The ‘protected characteristics’ referred to in the Act includes disability.

The Council’s Direct Payment Policy

28. The Policy says persons who wishes to receive a direct payment from the Council must sign a direct payment agreement. The agreement sets out how the Council will monitor the use of the payment to satisfy the Council it is being properly managed to meet the needs set out in the person Care Plan and personal budget.
29. The Policy says the Council pay’s direct payment funds net of a person’s assessed contributions. The Council may suspend or terminate a direct payment if a person:
• fails to pay their contributions into their direct payment account;
• fails to provide relevant information and evidence for the Council to be satisfied the payment is properly managed. This includes evidence of insurance, tax, and receipts for purchases; and
• stays abroad for more than 4 weeks in any one calendar year. However, a person may ask the Council to consider whether their circumstances are exceptional enough to depart from the guidance.

What happened

30. Mrs F has medical conditions. She has for many years been assessed to be entitled to support to meet her care and support needs.
31. Mrs F signed a direct payment agreement with the Council in 2018. This set out the personal budget needed to meet her assessed care needs. She managed her direct payment and recruited personal assistants to support her with her care needs.
32. Each year the Council assessed Mrs F’s income and completed a financial assessment which set out what her contributions towards her care should be. This was based on her benefits income. Disregards were made for her housing costs and the mobility component of her Personal Independence Payments.
33. In late 2022 the Council had concerns about how Mrs F had managed her direct payment account. These included some cash withdrawal, shortfalls of client contributions and money unaccounted for. It asked Mrs F to provide information and evidence about payments made.
34. In early 2023 the Council told Mrs F it was intending to remove her direct payment and replace this with a managed direct payment. This was because it believed she had not managed her direct payment account in line with its policy.
35. Mrs F told the Council she did not want a managed direct payment. She also said she had started studying at university abroad.
36. The Council informed Mrs F about its Direct Payments Policy which says it will only make payments for short stays abroad for up to four weeks. After this period, a direct payment would be suspended or terminated.
37. Mrs F said she sent some of the information the Council requested. However, when she spoke with the Council in February 2023, it told her the information was still missing. She said the Council told her decisions on her case would be put on hold until the end of March 2023.
38. Mrs F’s carer provided information to the Council shortly after. However, Mrs F was then told she was being put on a managed direct payment by a Council contractor.
39. Mrs F complained to the Council. She said:
• it had made its decision to put her on a managed direct payment prematurely as it had told her the case was on hold until the end of March 2023. She also questioned why the Council’s contractor was informed before her; and
• she had received a threatening letter from the Council which said she had to pay back a large amount to her direct payment account due to inappropriate spending between 2017-2019. She said she believed this was because her disability related expenses were calculated incorrectly, and she had tried to contest this with the Council at the time.
40. The Council told Mrs F it would not stop her direct payment until it had considered her complaint. However, two days later it stopped her direct payment. Mrs F complained to the Council again.
41. The Council spoke with Mrs F and apologised for the error. It reinstated her direct payment shortly after. It also told her she could request for the Council to consider special circumstances for her studies abroad.
42. In response to Mrs F’s complaint the Council said it:
• had followed its policy and guidance to reach its view she should be moved to a managed direct payment. It found she had failed or refused to provide all the information it had asked for;
• acknowledged its letters notifying Mrs F about her historical debt may be overwhelming. However, the letters were correct and issued in line with its policy;
• had agreed to continue Mrs F’s direct payment while she was abroad until it had considered her complaint. It set out its Direct Payments Policy again, which says it would not usually be possible to employ care staff in another country due to differences in tax, and health and safety regulations. Nor, would the Council be able to fulfil its duty to monitor her direct payment appropriately; and
• asked Mrs F to provide any exceptional circumstances for it to consider by the end of April 2023, if she failed to do so it would end her direct payment.
43. In April 2023 Mrs F shared her exceptional circumstances request with the Council. She asked for it to allow her direct payment to continue while studying abroad.
44. The Council acknowledged her request. It said it would consider her request under stage two of its complaints process, and sought legal advice to consider her request.
45. In May 2023 the Council told Mrs F it had considered her exceptional circumstances request. It refused her request and explained her direct payment would end in June 2023. It said once she returns to the UK in the Summer holidays, she should contact the Council for a new care assessment to be completed, as set out in its Policy.
46. Mrs F disputed the Council’s decision and said it would cause her hardship. She also asked her local MP to get involved.
47. The Council reconsidered her exceptional circumstances request but told her and her local MP it had not changed its view.
48. Mrs F’s direct payment ended in June 2023.
49. Mrs F continued to challenge the Council’s decision and wrote to several Council officers and departments. She believed its decision was in breach of the law and her Human Rights as she would experience hardship. She also questioned the Council view on the legal definition of ‘ordinarily resident’ in the UK.
50. In its final complaint response, the Council told Mrs F several teams and officers had been involved in its decisions, but it had not changed its view. It explained it had followed its Policy and Care Act Guidance in reaching its views on her managed direct payment and the suspension of her direct payment when studying abroad. It had also considered her exceptional circumstances request but did not agree this justified departing from its Policy.
51. Mrs F disagrees with the Council’s decisions. She says she has costs both in the UK and abroad such as rental and mortgage costs, utilities, insurance, living expenses, travel and equipment.
52. Mrs F returned to the UK in late July 2023 during the Summer break for her studies abroad. She informed the Council she had returned.
53. In Autumn 2023:
• the Council told Mrs F it had postponed the transfer of her direct payment to a managed direct payment following her notification of studying abroad in March 2023. It had decided this should now be put in place.
• However, following Mrs F’s request, the Council met with her to discuss its decisions around the direct payment when she is abroad and the managed direct payment. The Council has since agreed Mrs F can continue with her direct payment when she is in the UK as long as she adheres to the Direct Payments Policy and provides the evidence the Council needs to ensure she is managing it appropriately.
• the Council completed a care assessment and financial assessment for Mrs F.
• Mrs F asked the Council for financial calculations of her direct payment for Summer 2023 and its financial assessment in September 2023, and subsequently raised concerns about its calculations.
54. Mrs F remains unhappy with the Council’s decisions and asked the Ombudsman to consider her complaint. She included her concerns about the Council’s financial calculations of her direct payment for Summer and September 2023.

Analysis and findings

Managed Direct payment

55. I have considered the Council’s handling of its concerns about how Mrs F managed her direct Debit since November 2022.
56. I have not found fault in the process the Council followed to reach its view Mrs F’s direct payment should be changed to a managed direct payment. This is because, in line with its Policy and the Care Act Guidance, it was entitled to:
• monitor her direct payment and found it had concerns about her contributions and some payments which had been made;
• ask Mrs F to provide evidence and information regarding its concerns, and warned her of its intent to put her on a managed direct payment; and
• reach its view Mrs F should be put on a managed direct payment as it had not received all of the information it requested and continued to have concerns about how she had managed her direct payment.
57. I understand the Council told Mrs F it would not stop her direct payment until the end of March 2023. However, she was then told by the Council contractor the payment was ending and the Council subsequently stopped the payment.
58. The Council agreed this was an error, reinstated the payment and apologised to Mrs F. While, I accept this caused her some distress, I am satisfied the Council’s apology was appropriate to remedy the injustice it caused her as it was rectified shortly after the payment was stopped.
59. The Council subsequently postponed a decision on whether to change Mrs F’s managed direct payment due to her move abroad for her studies and the direct payment continued.
60. In Autumn 2023 the Council again considered whether Mrs F should be put on a managed direct payment. It found it still had concerns about how she had handled her direct payment. It decided a managed direct payment should be put in place and explained its reasons to her. I have found no fault in the process the Council followed as it acted in line with its Policy. It therefore reached a view it was entitled to make.
61. Following Mrs F’s meeting with the Council soon after, it decided Mrs F could continue with her direct payment, when in the UK, as long as she adhered to its Policy. I found its decision to allow Mrs F another chance to show she could manage her direct payment did not mean there was at fault in its previous decisions on this matter.

Suspension of Direct payment

62. Mrs F believes the Council was wrong to suspend her direct payment while she is studying abroad. She believes the Council’s Policy is a breach of the Care Act 2014 as it had a duty to provide her with her direct payment to meet her eligible care and support needs set out in her Care Plan.
63. I have not found fault in the process the Council followed to reach its view to suspend Mrs F’s direct payment. This was therefore a decision it was entitled to make. In reaching my view I am conscious:
• the Council’s Direct payment Policy, and the direct payment agreement Mrs F signed, sets out when the Council may suspend or terminate a payment. This includes circumstances when Mrs F spends more than four weeks in a calendar year abroad;
• Mrs F moved abroad to study in person in March 2023 with the intent of only returning during university breaks and holidays. She would there for be abroad for most of the calendar year;
• the Council has confirmed it agrees Mrs F can be an ‘ordinarily resident’ in its area even when she is abroad for her studies. However, it had suspended her direct payment as it cannot fulfil its duties to monitor and validate her spending, and due to concerns about differences in employment, tax, and health and safety regulations in another country; and
• the Council considered Mrs F’s exceptional circumstances request, as set out in its Policy, but found her reasons did not justify a departure from its Guidance. It also reconsidered her request following Mrs F making further representations of the hardship this would cause her, but it did not change her view. On each occasion it informed her about the outcome of its decision.
64. In addition, I am not satisfied the Council’s Direct Payment Policy failed to adhere to the Care Act 2014. This is because the Act and Statutory Guidance does not say the Council must pay Mrs F’s direct payment when she is abroad for more than four weeks. If Mrs F believes the Council’s Policy is in breach of the Care Act, she will therefore need to ask a court to determine the matter.

Discrimination

65. I have considered whether the Council had regard to Mrs F’s rights under the Human Rights Act 1998 and Equality Act 2010.
66. I am satisfied the Council did consider the impact its decisions had on Mrs F and her disabilities. This is because it considered her disabilities and exceptional circumstances request and involved several officers, departments, and sought legal advice to reach its views.
67. I understand Mrs F believes the Council’s decision to suspend her direct payment is in breach of the Human Rights Act 1998 and Equality Act 2010. Only a court can determine whether the Council has breached her rights, Mrs F will therefore have to approach the courts to progress this matter further.

Complaints handling

68. Mrs F was not satisfied with the Council’s handling of her complaints and the responses she received.
69. I have not found the Council at fault for how it handled Mrs F’s complaints. This is because it considered and responded to her complaints as set out in its Complaints Policy. While its final complaint response took longer than what it would normally expect, this was because it was considering Mrs F exceptional circumstances request.
70. I understand Mrs F feels she did not get a response to each and every point she made to the Council in her complaints, communication and requests to the Council. However, I would not expect the Council to do so as its responses sufficiently addressed her concerns.
71. If Mrs F feels the Council has failed to share information she was entitled to, she can ask the Information Commissioner (ICO) to consider the matter.

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Final decision

72. I have completed my investigation with a finding of no fault on the substantive matters complained about.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman