Summary: Ms X complained about how the Council decided not to pay her a year’s worth of direct payments it agreed she needed. There was fault there was fault in how the Council managed Ms X’s direct payments. This caused Ms X a financial loss and significant distress. The Council agreed to apologise, pay Ms X the outstanding payments and a further financial remedy. It also agreed to review the information it provides about direct payments and how its social care and direct payment teams work together.

The complaint

1. Ms X complains the Council has refused to reimburse her for payments she made to carers in 2020 after it agreed to pay her direct payments, or to pay the outstanding costs for a carer during that time. As a result, Ms X says she had to pay her carers herself, has used up her savings and still owes one of her carers money. She also says the Council has caused her distress by not resolving the problem for more than three years. She wants the Council to repay her the money she has spent and to pay her outstanding debt to her carer.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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)
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 considered:
• the information Ms X and her representative provided;
• the Council’s comments on the complaint and supporting information it provided; and
• relevant law and guidance.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Care planning and meeting needs

8. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
9. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.
10. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
11. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

Personal budgets and direct payments

12. 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 council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning. It should confirm the final amount of the personal budget through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs.
13. 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 (often called an individual service fund or ISF) with support provided in line with the person’s wishes; or
• as a direct payment.
14. 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.
15. Councils must tell people during the care planning stage which of their needs direct payments could meet. However, councils must consider requests for direct payments made at any time and have clear and quick procedures in place to respond to them.
16. After considering the suitability of the person requesting direct payments against the conditions in the Care Act 2014, the council must decide whether to provide a direct payment. In all cases, the council should consider the request as quickly as possible.
17. Councils must also provide information and advice about care choices and funding, including about direct payments. This information must be accessible, tailored to the needs of individuals and should include information about:
• what direct payments are;
• explanation of the direct payment agreement and how the local authority will monitor the use of the direct payment; and
• the responsibilities involved in managing a direct payment and being an employer.

What happened

18. The below is a summary of what happened between 2020 and 2024. It does not include every contact Ms X had with the Council during that time, only the most important events.
19. Ms X has eligible social care needs. Before 2020, the Council met these needs by arranging for carers to visit Ms X at home. Relationships with the carers broke down in 2019 which led to Ms X ending the arrangement.
20. The Council reviewed Ms X’s care needs in early 2020 and told Ms X, at that time, it would pay for 6 hours a week support, though a direct payment. This was due to start from the end of March 2020. At that time, the plan was for the direct payment to be managed through a payroll company which would pay Ms X’s choice of carer.
21. The Council sent a copy of a direct payment agreement to Ms X in April 2020. The agreement said Ms X’s chosen carer would need to be registered with the payroll company or would need to provide evidence of being self-employed.
22. Ms X asked the Council to deal with her advocate at the time, and a direct payment officer from the Council spoke to Ms X’s advocate in early May 2020 to explain the direct payment process. The Council also sent payroll registration forms to Ms X’s advocate for her carer to complete. A few months later Ms X returned the signed direct payment agreement, and her preferred carer provided the Council with evidence they were self-employed.
23. A social worker carried out a review of Ms X’s care plan in August 2020. The social worker identified the Council had made a mistake with Ms X’s direct payment, and Ms X needed two hours a week direct payment, as she was already receiving some floating support arranged by the Council. However, the Council agreed to honour the six hours a week from the end of March to the beginning of September 2020.
24. Around the same time, a direct payment officer spoke with Ms X’s preferred carer who agreed to register with the payroll company, but on a self-employed basis. However, a few weeks later Ms X told the Council she did not want a managed direct payment, and she wanted to manage the payments herself. A direct payment officer told Ms X she should speak to her social worker about this as this would carry extra responsibilities. The direct payment officer also spoke to Ms X’s advocate and explained these extra responsibilities. The Council’s records from around this time also note that Ms X’s social worker reassured her that the Council would reimburse her for the money she had already paid her carer.
25. Over the next few months, Ms X, her advocate and the Council exchanged several emails about Ms X’s direct payment and that it had not yet paid these. The Council told Ms X that since she had no records of the payments made, it could not pay the backdated direct payments to her. Ms X and her advocate told the Council the delay had caused the relationship with her carer to break down, that her brother was now caring for her instead and nobody had properly explained what evidence she needed to keep for the payment she made.
26. Ms X’s case was allocated to a new social worker in early 2021 to carry out a review of her care needs. Around this time, a local advice agency complained about the outstanding direct payments on Ms X’s behalf. The Council responded to that complaint around a month later, explaining that Ms X had not provided evidence of the payments she had made. The Council’s response did not tell Ms X about how to take her complaint further, either through the Council’s complaints procedure or to the Ombudsman.
27. Around this time, a third carer started working for Ms X, taking over from Ms X’s brother. That carer was registered with an independent payroll provider approved by the Council.
28. In mid-2021, the Council arranged a meeting to discuss Ms X’s case. Ms X was invited, but decided not to attend the meeting. Professionals at the meeting discussed both the issue of how many hours the direct payment should be for, and the outstanding direct payments. During the meeting, the suggestion was made that Ms X could provide a written statement from her first two carers setting out what hours and pay they had received as evidence for the outstanding payments. Those at the meeting also noted that a review of Ms X’s care needs was needed to clarify how many hours the direct payment should be for, but that Ms X was not engaging in that process.
29. After the meeting, Ms X’s social worker visited her at home. They explained asking Ms X’s former carers for written statements and that they would clarify the role of the floating support worker.
30. Later in 2021, Ms X started working with a different advocate who also contacted the Council about the outstanding payments. The direct payment officer told Ms X’s advocate to contact Ms X’s social worker “its their decision as to what [Ms X] need to provide in case she is unable to provide the [correct] evidence”.
31. A social worker carried out a review of Ms X’s care needs in late 2021 and agreed to an increase in her direct payments from two hours a week to three.
32. In early 2022, Ms X started working with another advocate, who contacted the Council about the outstanding payments. They told the Council Ms X was waiting for a signature from her second carer. Around this time Ms X’s social worker told the Council’s direct payment team they would agree to the outstanding payments being made to Ms X. However, the direct payment team told the social worker they needed specific information about Ms X’s carers. Ms X’s social worker passed this information on to Ms X’s advocate.
33. In April 2022, Ms X’s advocate provided written statements from Ms X’s carers. However, the Council decided these statements did not contain the right information.
34. A few months later Ms X and her first carer contacted the Council and had a discussion with a direct payment officer. The officer suggested Ms X have her support worker or advocate contact the Council but Ms X told the officer that she no longer worked with her advocate. The officer said Ms X should send the required information to her social worker so that their manager can authorise the payments.
35. Later in 2022, Ms X sent further statements to the Council which included the information it had asked for. The direct payment team sent these to Ms X’s social worker along with some of their concerns about the information (such as Ms X paying her second carer for more hours than her direct payment would have been at the time, and there being no clear end date for the second carer). The social work team replied, saying they had already authorised the payments and questioning whether the issues were a barrier to Ms X being paid. The two teams then exchanged further emails about who was responsible for agreeing to the payments.
36. Ms X’s case was allocated to another social worker to carry out a review, before Ms X went into hospital for planned surgery. Ms X also started work with her current advocate around this time, who contacted the Council about the outstanding payments.
37. The Council and Ms X’s advocate exchanged further emails about the outstanding payments in early 2023, including Ms X’s advocate providing further bank statements from Ms X, without further progress.
38. Ms X’s advocate complained to the Council in November 2023 and the Council responded in December 2023. The Council did not uphold Ms X’s complaint and told her it would not pay the backdated payments without evidence of the payments she made.

My findings

39. Ms X’s complaint about events between 2020 and mid-2023 is late. However, I am satisfied the evidence shows Ms X needed help to make complaints both to the Council and Ombudsman and could not do so herself. The Council also failed to tell the advice agency in 2021 about how Ms X could complain further at the time. I am satisfied these are good reasons to investigate Ms X’s complaint about those events now.
40. I am satisfied there was fault with how the Council dealt with Ms X’s request for direct payments and her request for payment of the outstanding payments. I have set these out below.
41. The Council failed to provide clear, accessible information about direct payments when she first asked for these in early 2020. The written information the Council sent to Ms X did not clearly set out, in an accessible way, what evidence Ms X needed to keep for any payments she made to her carers. Although the direct payment agreement and accompanying letter said the Council would require evidence and gave some examples, this was a legal agreement and only set out Ms X’s obligations, without any details or help about how the Council would expect her to meet them. I am not satisfied this information met the Council’s responsibilities to tailor information to the needs of individuals or to help them make informed choices about their care.
42. Social workers and the direct payment team gave conflicting information to Ms X about what would happen. Several social workers reassured Ms X that she would receive the outstanding payments. The direct payment team asked Ms X for different types of evidence, and when Ms X provided these then asked for different information.
43. The Council missed several opportunities, over more than three years, to take decisive action to resolve the problem. Once it became clear that there was an issue over the evidence Ms X had or did not have, the Council should have made it clear exactly what information it needed from her. Instead, the Council passed the responsibility onto Ms X and her advocates, even after it became clear Ms X had difficult engaging with the Council and had several different advocates.
44. The Council’s social work and direct payments teams also disagreed about who was responsible for agreeing to pay the outstanding payments. Despite the direct payment team asking the social work team for approval, they still did not make the payments when approval was provided. There is no evidence the Council took action to resolve those disputes at an appropriate level within the Council.
45. The Council failed to respond to the complaint from the advice agency in 2021 in line with its complaints process. There is no evidence the Council properly recorded this as a complaint, or told Ms X or the advice agency how she could complain further if she was not satisfied with the Council’s decision.
46. The Council also failed to send Ms X copies of the direct payment documents she originally signed when she asked for these several times. The Council only sent these documents to Ms X in February 2022.

Injustice to Ms X

47. I am satisfied that the fault set out above meant that Ms X:
• incurred expenses for paying her first two carers which the Council has not paid; and
• was caused significant avoidable frustration, worry and distress over a period of several years. I am satisfied Ms X’s health conditions meant Ms X felt this distress was quite severe.
48. Ms X said that the delays with arranging the direct payments meant that her relationship with her first carer broke down. I am not satisfied the evidence shows that this was the sole cause of that relationship breaking down. However, I accept there is some remaining uncertainty about this, which is a further injustice for Ms X.
49. The Council agrees Ms X needed care and should have received a direct payment of:
• six hours a week between late March 2020 and the beginning of September 2020; and
• two hours a week between the beginning of September 2020 and the end of March 2021.
50. Ms X told the Council she was receiving care from two people during that time, and there is no evidence Ms X did not receive the care her direct payment was supposed to fund. Ms X has also provided, to the best of her ability, evidence that she received that care, who provided and how much she paid them. Although the figures Ms X provided do not exactly match those the Council would have paid, they are higher which suggests that Ms X paid out at least the amount of the direct payments she would have received.
51. On the basis, my view is the Council should pay Ms X the direct payments she would have received for paying her carers (less any payroll fees she did not incur) between when her direct payments should have started, and when the third carer started working for her in April 2021. It should also pay Ms X an increased amount to recognise the difference in spending power of that money between 2020-21 and today.
52. It should also pay Ms X a further financial remedy to recognise the distress it caused her over a period of several years. I am satisfied, taking into account Ms X’s health conditions and the period of time, that symbolic payment should be higher than the amounts we would usually recommend for avoidable distress.

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Agreed action

53. Within one month of my final decision, the Council will:
• pay Ms X £3,414.16, including £790.99 interest, for the direct payments she should have received between April 2020 and March 2021, inclusive;
• apologise to Ms X for the significant distress caused by the fault I have set out above; and
• pay Ms X a further £800 to recognise the impact of that distress on her.
54. Within three months of my final decision, the Council will, as part of its existing improvement plan:
• review the information it provides to people who received direct payments for adult social care. The Council should ensure that it provides sufficient clear, accessible information (for example, a straightforward user guide) that people can properly understand how direct payments work and what they need to do;
• arrange refresher training for its social workers on how direct payments work and what people receiving them need to do to properly manage their payments;
• review how its social work and direct payments teams work together to ensure that both teams understand their different responsibilities and that people are provided with consistent information, and that there are clear procedures to resolve disputes between the two teams.
55. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
56. The Council should provide us with evidence it has complied with the above actions.

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Final decision

57. I have completed my investigation. There was fault in how the Council managed Ms X’s direct payments. This caused Ms X a financial loss and significant distress. The Council agreed to apologise, pay Ms X the outstanding payments and a further financial remedy. It also agreed to review the information it provides about direct payments and how its social care and direct payment teams work together.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman