Summary: Mr X complained the Council changed the expenses it allowed under direct payments and its communication with him about this was poor. We upheld the complaint because communication was not in line with our expected standards. The Council will apologise, make a symbolic payment and issue Mr X with a comprehensive statement about the expenses the Council allows for Mr Y’s direct payment based on his current care and support plan.

The complaint

1. Mr X complained the Council changed the expenses it allowed under direct payments (DPs) for his son Mr Y and its communication about this was poor. Mr X said this caused avoidable confusion and a financial loss.

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The Ombudsman’s role and powers

2. 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)
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. The rule about late complaints (see paragraph two) does not apply where the person affected does not have mental capacity to complain. This applies to Mr Y. So I have investigated Mr X’s complaint which relates to DP expenses from 2023.

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How I considered this complaint

6. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

8. Direct payments (DPs) are money a council gives to an adult to arrange their own care and support. Another adult can manage a person’s DP on their behalf.
9. A care and support plan is a document describing a person’s needs identified by the council in their social care assessment. The plan explains if the needs meet national eligibility criteria and how the council intends to meet those needs. If some or all needs are to be met by a DP, the plan sets the amount and frequency of payments. (Care Act 2014, section 25)
10. A DP can only be used to pay for arrangements to meet the needs set out in the person’s care and support plan. (Care Act 2014, section 33(3))
11. Our Principles of Good Administrative Practice set out our expectations of councils. We expect them to:
• Act fairly. This includes dealing with people consistently.
• Be citizen focused. This means informing people who use services what they can expect and what the organisation expects of them.
• Get it right. This means taking reasonable and timely decisions.

Summary of key events

12. Mr X manages a DP for his adult son Mr Y who is disabled. Mr Y’s care and support plan of April 2023 says the Council provides:
• A day centre placement for three days a week
• 22 hours a week of funding for accessing community and social support (used on days when not attending day centre)
• 28 hours a week of funding for support with personal care
• Funding for 56 nights a year of respite care.
13. The Council said in previous complaint responses that Mr X could not use the DP to pay for Mr Y’s food and drink because a DP can only be used to pay for services which meet a person’s assessed eligible care needs. The Council said breakfast for PAs would not be allowed as all workers are expected to provide their own food and drink at work. The Council also agreed Mr X could use the DP to fund a break for Mr Y as respite care.
14. Mr X submitted paperwork for Mr Y’s quarterly DP expenses claim in October 2023. An officer from the finance team emailed him in November explaining the Council would not pay for the PA’s food or drink if they had been on shift for less than 10 hours. The officer also asked for more details about some of the items claimed and said in future, the Council would not pay for mileage.
15. The finance team sent Mr X a spreadsheet of his DP expenses claim. The spreadsheet set out each item saying whether it was accepted or rejected. Many of the items needed further explanation from Mr X before the Council would allow them (for example, the receipt only had one person’s items on it suggesting the expense was not incurred as part of an event where the PA was on shift or were for food and drink costing more than the £10 allowance)
16. There followed a series of email exchanges between officers and Mr X who was dissatisfied with the outcome to his DP expenses claim. The Council’s complaints team treated his contacts as a complaint and provided complaint responses in March and April 2024 which said:
• PA’s are there to support Mr Y; they would not be seen as socialising during a meal and so the DP would not usually be allowed to be used to pay for their food and drink
• He needed to provide receipts for some additional items claimed for respite
• A previous complaint response regarding meals said the Council would expect PAs to provide their own food
• The Council had queried items which were unclear, more than expected, or related to expenses other than food (like snooker)
• The Council would need to provide Mr Y with an (updated) care and support plan
• They were sorry items had previously been approved when they should not have been.
17. Mr X emailed the Council’s complaints team in May 2024 asking when the Council would give him clear guidance about allowable DP expenses. He said the Council had been giving mixed messages. The complaints officer apologised and said the social care team would be issuing guidance within four weeks as part of Mr Y’s review.
18. In his complaint to the Council in October 2024, Mr X said he had sent the Council his DP expenses and receipts in October 2023 and was told in the middle of November 2023 that the Council was not allowing the full amount he had claimed because some items were not in Mr Y’s care and support plan. Items that had previously been allowed were expenses for PAs (food and drink, trips, hotel stays.)
19. The Council said in its complaint response in November 2024 that:
• It had previously allowed some items which with hindsight, should not have been allowed. Social care funding should only be used to meet needs, rather than on things which contribute to an adult’s overall happiness and wellbeing.
• It had not provided clear guidance about how Mr Y’s DP could be used
• A manager had agreed mileage, a £10 food allowance for the PA when working over 10 hours on a shift and leisure activities for the PA
• The Council would issue clear DP usage guidance as part of Mr Y’s review which was due shortly
• The Council had explained why some items in his claim had been rejected and had asked him for more details of some expenses
• It used information/guidance from HMRC about mileage.
20. Mr Y complained to us in February 2025.
21. We asked the Council for the most recent review of Mr Y’s care and support plan. The Council provided a review completed in 2021. The Council also provided an assessment completed in 2022 and carers assessments and carers support plans dated February 2025. None of these documents have clear and comprehensive guidelines on what the Council considers to be acceptable for DP expenses for Mr Y.

Findings

22. The Care Act says DPs can only be used to meet a person’s eligible care and support needs. This is a clear principle. We expect councils to give clear and comprehensive information when delivering services to be in line with the principles I have set out in paragraph 11. The Council has accepted its guidance to Mr X has changed over time and it has previously allowed items which it should not have done. This lack of clarity is fault as it is not open, accountable or citizen focused. This has caused Mr X avoidable confusion and uncertainty.
23. DPs are public money and Mr X has been told they are to be used to meet Mr Y’s care and support needs. This general information is correct and there is no fault in the Council saying this. There is some flexibility within this general principle, however, and the Council was at fault in not setting out in writing exactly what it would allow in terms of the PA’s expenses. Mileage, food and drink and allowances for ‘respite’ seem to be those items which in some circumstances may be allowable and in others may not be and the Council’s approach has evolved over time. I can see why this lack of clarity and change to a ‘stricter’ position had created confusion for Mr X.
24. The Council has previously said it would give guidelines for Mr X to provide clarity and minimise the risk of recurrence. I can see no evidence that this has been done, despite the November 2024 complaint response promising clear guidance. This is a further fault, not in line with our principles and which has prolonged the confusion and uncertainty.
25. The Council provided Mr X with an annotated spreadsheet setting out queries on many items he was claiming in 2023 and inviting him to provide additional information for it to reconsider those items. This is good practice and there is no fault. There are no grounds for me to say Mr X should be paid for any more items on his claim. The Council is entitled to query items which appear excessive and/or appear not to have been used to meet Mr Y’s social care needs because DPs are public funds.

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Agreed Action

26. Within one month of my final decision, the Council will:
1. Apologise to Mr X. 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.
2. Make Mr X a symbolic payment of £150 to reflect the avoidable confusion and uncertainty set out in the last section.
3. Issue comprehensive written guidance on what the DP can and cannot be used for. This should cover all the items that caused Mr X to complain and include mileage, holidays/respite, food and drink and activities plus any other items to meet Mr Y’s social care needs.
27. The Council should provide us with evidence it has complied with the above actions.

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Decision

28. I find fault causing injustice. The Council has agreed actions to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman