Summary: Mrs X complained on behalf of Mr Y that the Council wrongly suspended his direct payments while he was in hospital. There was no fault in the actions of the Council.

The complaint

1. Mrs X complains on behalf of Mr Y that the Council wrongly suspended his direct payments while he was in hospital. Mrs X says the Council failed to consider using its discretion when deciding to suspend the direct payments.
2. Mrs X says this meant that Mr Y’s non-health care needs were not being met while he was in hospital because of the suspension of his direct payments, which delayed his return home.

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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. 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(1), as amended)

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What I have and have not investigated

6. Some of the events related to this complaint happened more than 12 months before Mrs X complained to us, in August 2025. I have not seen any good reason why Mrs X did not complain to us sooner. So, my investigation will start from August 2024, which is 12 months before she complained to us.
7. The end date of this investigation is August 2025, which is when Mrs X complained to the Ombudsman.

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How I considered this complaint

8. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
9. Mrs 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

Legislation and guidance

The Council’s direct payment policy – hospital admissions

10. The Council’s policy says a person cannot use their direct payment to pay for healthcare, but might still be able to use it for other support, like keeping a personal assistant’s job safe.
11. If a person is in hospital for more than four weeks, a direct payment will usually end but the Council will complete a review to see if the care plan needs to change.

The Care and Support Statutory Guidance (CSSG)

12. 12.52 There may often be occasions when direct payment holders require a stay in hospital. However, this should not mean that the direct payment must be suspended while the individual is in hospital. Where the direct payment recipient is also the person requiring care and support, consideration should be given to how the direct payment may be used in hospital to meet non-health needs or to ensure employment arrangements are maintained. Suspending or even terminating the payment could result in the person having to break the employment contract with a trusted personal assistant, causing distress and a lack of continuity of care when discharged from hospital.
13. 12.53 In these cases, the local authority should explore with the person, their carer and the NHS the options to ensure that both the health and care and support needs of the person are being fully met in the best way possible. For example, the person may prefer the personal assistant to visit hospital to help with personal care matters. This may be especially so where there has been a long relationship between the direct payment holder and the personal assistant. This should not interfere with the medical duties of hospital personnel, but be tailored to work alongside health provision.

What happened?

14. Mr Y is an adult with social care needs.
15. The Council makes a direct payment to Mr Y, which he uses to pay a care provider for 24 hours of care per day, in his own home. Mr Y’s care and support is funded solely by the Council.
16. Historically, when Mr Y had been admitted to hospital. The Council had suspended his direct payments until his discharge.
17. Mr Y was admitted to hospital again on 27 January 2025.
18. The same day Mrs X contacted the Council. She explained that Mr Y’s health was likely to worsen if it suspended his direct payments, as hospital staff did not have the specialist skills needed to care for him properly. She asked the Council to continue the direct payments, so the care provider could keep supporting him while he was in hospital.
19. The Council replied to the following day. It noted its view remained unchanged from previous years – direct payments could not be used to pay for services that were the responsibility of the NHS. The Council advised Mrs X that, if she was concerned hospital staff could not meet Mr Y’s needs, she should raise those concerns with the hospital, as NHS staff were responsible for his care while he was an inpatient.
20. Mrs X responded straight away with her view that the direct payment was needed to meet Mr Y’s eligible social care needs while he was in hospital.
21. Shortly after this, the Council’s legal department wrote to Mrs X noting:

• It is normal practice for councils to suspend direct payments while a person is in hospital because the NHS is responsible for meeting inpatients needs.
• The CSSG says there might be occasions when a council might choose to continue direct payments during a hospital stay, such as when suspension could lead to breach of employment contract and/or endanger the continuity of that person’s care when they leave hospital.
• Mr Y’s needs were managed through a care provider, so there was no risk of him being in breach of an employment contract during a suspension of the direct payment. The care provider confirmed it would continue to support Mr Y following discharge from hospital.
• The Council considered that all Mr Y’s needs would be met by hospital staff, while he was in hospital. If Mr Y’s representatives were concerned that hospital staff were not meeting Mr Y’s needs, concerns should be directed to the hospital.
• The CSSG notes that if direct payments continued during a hospital stay, a council would likely consult with representatives to see how direct payments should be used. But, because the Council had decided to suspend direct payments, there was no need for such consultation.

22. The Council resumed Mr Y’s direct payments immediately on his discharge from hospital.
23. Mr Y was admitted to hospital again on 15 May 2025. The Council again suspended his direct payments until his discharge on 19 May 2025.
24. Mrs X complained to the Council on 2 July that it had wrongly suspended Mr Y’s direct payments during his hospital admissions. She said:

• During each admission, Mr Y’s condition had deteriorated because hospital staff could not provide the care he needed. This included skin breakdown, pressure sores and being fed meat when he was a vegan.
• She considered the CSSG applied not only to employment related issues but also to meeting a person’s non-health care needs while they were in hospital. She felt the Council ignored this aspect of the guidance in its correspondence with her and focused solely on employment related issues.
• The Council failed to consider that the Care Act 2014 places a duty on a council to promote an individual’s wellbeing. By suspending the direct payments, Mrs X complained the Council failed to promote Mr Y’s wellbeing.

25. The Council responded to Mrs X shortly after. It expressed it would not consider her complaint as its legal department had already addressed the issue in 2023 and again in early 2025. It explained it disagreed that the Council had only concentrated on employment issues when deciding to suspend Mr Y’s direct payments.

Findings

26. The Ombudsman’s role is to review how councils have made their decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not considered relevant information, or not properly explained a decision it has made.
27. However, we do not make operational or policy decisions on councils’ behalf, provide a right of appeal against their decisions, or seek to replace their judgement with our own. If a council has made a decision without fault then we cannot criticise it, no matter how strongly a complainant feels it is wrong. We do not uphold complaints simply because someone feels a council should have done something different.
28. What that means in this particular case is that it is not for me to make my own judgement about whether the Council should have suspended Mr Y’s direct payments while he was in hospital. However, I can consider whether the Council properly made its decisions about this matter and explained its reasoning.
29. The Council explained the NHS was responsible for meeting Mr Y’s needs when he was in hospital and so it had no concerns about his needs not being during these periods.
30. The Council noted that the direct payments were paid directly to the care provider, and so its decision to suspend them did not put Mr Y at risk of breaching any employment contract. It also said the care provider agreed it would resume its service on Mr Y’s discharge from hospital and so there was no risk of a lack of continuity of care.
31. The Council also explained it did not see any need to consult on this decision as it was the usual course of action in the given circumstances.
32. The Council made a decision it was entitled to make, in line with the CSSG. There was no evidence of any fault in the way the Council made this decision. It is clear it considered Mrs X’s arguments about why the direct payments should continue and responded that it did not agree, clearly explaining its reasons for its decision.

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Decision

33. I find no fault.

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Investigator's decision on behalf of the Ombudsman