Summary: Mr X complained the Council has paid Mrs X a direct payment rate lower than it would have paid a council contracted care provider for her care. I have ended my investigation because I cannot achieve a worthwhile outcome from further investigation as I am unlikely to be able to achieve the remedy Mr X wants.

The complaint

1. Mr X complained the Council has been paying Mrs X a direct payment rate lower than it would pay a council contracted care provider to provide Mrs X’s care since 2019.
2. Mr X complained Mrs X has accrued a debt with her chosen care provider because of the difference between the direct payment from the Council and what she has to pay for her care provider.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

5. I have considered all the information Mr X provided.
6. Mr X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

What happened

7. In March 2019, Mrs X signed a direct payment agreement with the Council for Mrs X’s care charges. Mrs X started to receive these direct payments at the end of March 2019.
8. Mrs X lived at retirement apartments with in-house care. Mrs X used her direct payments to pay for in-house care provided by the retirement apartments. When Mrs X agreed to the direct payments the Council confirmed with her she understood these would not cover the full cost of the in-house care provider. Mrs X said Mr X would pay for the shortfall in the care costs.
9. The Council completed regular care reviews of Mrs X care needs and direct payments. The Council was aware that Mrs X was accruing a debt with the care provider.
10. On 1 November 2023, the Council completed a care review and confirmed Mrs X owed over £10,000 to the care provider. This care review assessed Mrs X’s eligible care needs.
11. The Council tried to agree a contract between itself and the retirement apartments in-house care provider rather than Mrs X paying it for the care. The retirement apartments declined the Council’s contract offer as it would mean reducing its costs.
12. The Council suggested Mrs X receives her care from a council contracted care provider so she would not need to contribute to the cost of her care. The Council arranged this care to start in December 2023. Mr X cancelled this care with the view to the Council continuing to pay Mrs X direct payments so she could pay for the in-house care provider. The Council detailed its direct payment calculations for Mrs X’s care needs in the care review in December 2023.
13. As part of Mr X’s discussions with the Council, the Council confirmed the retirement apartments would not accept its offer of £21.52 per hour for the care costs since it charged £24.20. The Council said its standard rates for its contracted care providers is £21.52 per hour.
14. Mr X complained to the Council that it was paying Mrs X a direct payment of £16.30 but the Council offered £21.52 for its contracted care providers to provide the same care. Mr X asked the Council to provide Mrs X with a direct payment equivalent to the cost the Council pays its contracted care providers.
15. The Council provided its complaint response on 15 February 2024. The Council declined Mr X’s request. The Council outlined the options available to Mrs X. This included receiving her assessed direct payment and either continuing with the in-house care provider, and pay the difference in cost, or source a more affordable care provider. Or, the Council said it could agree a contract with a council contracted care provider for Mrs X.

Analysis

16. When a person has care needs in the community, the Council has a general responsibility to assess and meet these care needs where applicable. A council may meet these care needs by providing a direct payment to a person for the assessed amount the Council decides through a care assessment. Or, a council can arrange for a care provider to meet these care needs directly through a contract with the Council. The choice about whether to use direct payments or a council contracted care provider is up to the person receiving care.
17. Mrs X chose to use direct payments to source her own care provider to meet her needs and signed a direct payment agreement in 2019. The Council met its responsibility to provide care for Mrs X through provision of the assessed direct payment since 2019. How Mrs X used this direct payment to meet her own care needs was up to Mrs X. Mrs X agreeing a contract with the in-house care provider was her choice. Any debt she has accrued with this in-house care provider is a private contractual matter between her and the care provider and does not involve the Council.
18. Direct payments are flexible payments to enable a person to source their care. A person may choose to use just their direct payment funding to do source their care or pay for a more expensive care provider and make up any extra funding needed themselves. Council contracted care providers meet a person’s needs as arranged by the care provider and the Council. The Council has set contracts with these care providers which are not flexible. The two ways in which a council can provide care are different ways of meeting the same goal of providing care. While they reach the same goal, and a person can choose between the two options, the way in which a council manages them do not cross-over.
19. The Council has taken all suitable steps to try to source Mrs X care. The Council tried to agree a contract with Mrs X’s chosen care provider but the care provider rejected this. The care provider was under no obligation to accept the Council’s offer and the Council was under no obligation to offer to pay more than its contracted care provider rate. The Council has outlined to Mrs X the options available to source her care.
20. The Council has assessed Mrs X’s care needs and decided on a direct payment at a suitable level to meet these care needs. A council is under no obligation to match its direct payments to the cost of the price it pays its contracted care providers. While the Council may pay its contracted care providers a higher amount than it pays a direct payment, this is entirely a commercial decision by the Council and not one the Ombudsman can question. Since I cannot question this decision by the Council, I cannot achieve the outcome Mr X wants from his complaint and cannot find fault with the Council.

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Final decision

21. I have ended my investigation and do not uphold Mr X’s complaint. I cannot achieve a worthwhile outcome from further investigation as I am unlikely to be able to achieve the remedy Mr X wants.

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Investigator's decision on behalf of the Ombudsman