Summary: Mr X complained the amount offered by the Council to reimburse missed direct payments it too low and does not cover the actual costs incurred. The normal respite arrangements were considered unsuitable to meet Mr X’s needs but no clear agreement on respite was ever reached. I have recommended an amount based on the normal Shared Lives respite payments.

The complaint

1. Mrs Z and Mr X complain the amount offered by the Council to reimburse missed direct payments is too low and does not cover the actual costs incurred.
2. They say this has caused Mr X financial hardship.

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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 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)
4. 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

5. Following a previous investigation by the Ombudsman, the Council agreed to backdate direct payments for 2022 and 2023 to cover periods of respite care. This complaint is only concerned with the amount offered to reimburse the cost of respite care. Other matters raised in the previous complaint have been determined and there is no basis to reconsider them.

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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant’s representative;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant and his representative;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

Direct payments

7. Direct payments are monetary payments made to individuals who request to receive one to meet some or all of their eligible care and support needs. The legislative context for direct payments is set out in the Care Act, Section 117(2C) of the Mental Health Act 1983 (the 1983 Act) and the Care and Support (Direct Payments) Regulations 2014.

Key facts

8. This section sets out the key events in this case and is not intended to be a detailed chronology.
9. Mr X lived with Mrs Z under the Shared Lives scheme. As part of that scheme, Mrs Z was entitled to 28 days leave per year. The scheme usually matches the client with another shared lives carer and then the Council pays for 28 days of alternative provision. Where needs cannot be met by another Shared Lives carer, the Council will source alternative provision via its brokerage team. It says this is usually with a commissioned respite provider.
10. It was determined that Mr X was unable to have respite under the normal arrangements as a result of trauma experienced in his life. The Council however needed to ensure that Mrs Z could have the leave she was entitled to. So it agreed Mr X could employ a carer using direct payments. Mr X employed a carer who came and lived in Mrs Z’s home for the period she was away and provided full time care for Mr X.
11. As part of a previous complaint to the Ombudsman, Mrs Z, on behalf of Mr X, complained about the respite care. She complained there was not proper provision in place to enable her to take a break. The Ombudsman upheld this complaint and recommended the Council make arrangements to backdate the direct payments for the years 2022 and 2023.
12. The Council accepted the recommendation and wrote to Mr X in February 2024 setting out how it had calculated the amount owed. It said it had calculated the figure by using the amount of assessed needs in Mr X’s support plan and the rates in place at the time. It calculated the payments as follows:
• £1526.80 for 2022 – 3 hours per day x 28 days x £13 – this included a payment of £434.80 for five nights of sleeping night provision
• £1269.00 for 2023 – 3 hours per day x 28 x £15
13. Mr X said that the amount offered was incorrect and that the Council had confirmed he had a Shared Lives placements which supported his 24-hour care needs. Mr X said he had already paid the carer and the Council’s calculations fell a long way short of this. He said he could not accept the money offered as he would be out of pocket.
14. The Council consulted with the Ombudsman about the remedy and we responded saying the Council had done what we asked it to in terms of the recommendations for the complaint. The Council therefore told Mr X the offer for the assessed respite for 2022 and 2023 remained at £2786.80. Mrs Z wrote to the Council on behalf of Mr X saying he did not accept the offer and would be contacting the Ombudsman. As a result, we opened this new complaint to look at whether the amount offered was appropriate.

Analysis

15. Mrs Z complains the amount offered by the Council is too low and does not cover the amount actually paid by Mr X for the respite care. When Mrs Z was away from home for 28 days a year, Mr X paid a carer to live with him full time. He has told me the amount paid for this is about £6,600 in each year. My rough calculations show that this would mean Mr X paid his carer about £10 per hour for 28 days of 24-hour care.
16. Mr X has not provided me with evidence to show that he paid this amount of money to his carer. Any money paid to the respite carer was not done through the direct payment account and no other evidence has been provided. The Council, in response to my enquiries, said that it asked Mr X to provide evidence of payments made and he had not done this. It says that Mr X indicated he had paid the carer in cash without an audit trail.
17. As I have not seen evidence of actual amounts paid by Mr X, I have considered what would be an appropriate amount. I note that no agreement was reached about exactly how respite would be arranged and the amounts that would be paid. The Council has stated that it was difficult to identify the amount to pay to Mr X. It said the support plan in place in 2021 identified three hours care a day and so it used this to calculate the amount. The Council says that Mr X was not in need of 24-hour care at the time of the respite, though it is noted there was a short period of time when Mr X required this level of care.
18. It is my view that an appropriate payment would be to use the amount paid to respite carers under the usual Shared Lives respite process. Where a person goes to stay with another Shared Lives carer for respite, the amounts paid would be as follows:
• In 2022 - £55.04 per 24 hours; and
• In 2023 - £59.44 per 24 hours.

Using the above figures for 28 days of respite for each year gives a total amount of £3,205.44.

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Agreed action

19. The Council, within one month of my final decision, should make a payment of £3,205.44 to Mr X. If any payment has already been made to Mr X in respect of the respite payments, that amount should be deducted and the difference paid.
20. The Council should provide us with evidence it has complied with the above actions.

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Final decision

21. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman