Summary: Ms Y, an advocate, complained on behalf of Ms X that the Council wrongly asked Ms X to pay a top up after she engaged a care provider with a higher hourly rate. There is no fault by the Council as there is nothing to confirm a social worker said surplus funds in the direct payment account could be used.

The complaint

1. Ms Y, an advocate, complains on behalf of Ms X, that the Council is wrongly asking Ms X to pay a top up after she engaged a care provider with a higher hourly rate.
2. Ms X says her social worker agreed she could use surplus funds in her direct payment account and repaying the charges will cause financial distress.

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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(1), as amended)

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How I considered this complaint

5. I considered evidence provided by Ms Y, Ms X and the Council as well as relevant law, policy and guidance.
6. Ms Y and Ms 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

Direct payments

7. 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.

Key facts

8. This section sets out the key events in this case and is not intended to be a detailed chronology.

9. Ms X is a disabled adult in receipt of direct payments (DP). She used the DP to employ a care agency (agency A) to provide personal care. Ms X experienced problems with agency A missing care visits or not providing the standard of care she required. Ms X raised these issues with the Council and discussed seeking an alternative provider.
10. Ms X says a discussion took place with her social worker who recommended she use agency B. The hourly rate charged by agency B was significantly higher, at £29 per hour, than the rate of £17.48 paid as a DP by the Council. Case notes indicate the Council offered to make a referral to another care provider that could provide care for the DP rate but that Ms X declined the offer preferring agency B.
11. There was a surplus of funds in Ms X’s DP account because she had not used the full amount due to agency A failing to turn up for all care visits. Ms X says her social worker agreed she could use this surplus to make up the difference between the DP hourly charge and the amount charged by agency B. Ms X says the social worker told her to get back in touch when the funds were depleted and they would revisit the situation.
12. Agency B began providing care for Ms X in August. In December, Ms X sent a text message to her social worker saying the money in the direct payment account was about to run out and asking what would happen now. When Ms X did not receive a response, she telephoned the duty social work team. Ms X explained she would not be able to pay agency B’s bill at the end of the month and requested a call back as soon as possible.
13. The Council explained to Ms X that it only paid up to £17.48 per hour and that if agency B charged more then she would be responsible to pay this difference. Ms X said she could not afford this and that this should have been explained to her. Ms X was advised to contact the direct payment team to discuss this further.
14. Ms X’s next contact with the Council was in January when she indicated she intended to employ a personal assistant (PA) and wanted advice about this. She said she wanted to continue to use agency B for five hours per week and then use the remaining DP money to pay the PA. The Council explained to Ms X that if she reduced the number of care hours this would be taken into account during future reviews of her care needs potentially resulting in a reduction in the care package. It also explained that DP’s for a PA are paid at a different rate than for a care agency to account for employer costs such as tax, insurance and national insurance. Information provided by Ms X indicates the PA began working for her on that day and that support from agency B ended a month later.
15. The Council conducted an audit of Ms X’s direct payment account and wrote to her saying she needed to repay £3,131.96. It provided details of how this had been calculated and said it was the difference between the DP rate and the actual cost of the care provided by agency B. Ms X responded saying she was appalled to receive the repayment request as the spending was agreed by her social worker. She said that decluttering was part of her care plan and so that spending should be allowed.
16. The Council responded saying it had considered the points made by Ms X and had reviewed the figures. It said the amount Ms X was required to repay had been reduced to £1,146.71 and provided a breakdown of how this new figure had been calculated. The Council said that Ms X had signed the direct payment agreement in December 2020 which stated “if the cost of your home care provider is more than your funding you will be responsible for paying any additional cost”. The Council said that it had found no evidence that it agreed to cover the higher agency cost. It said that if she had any evidence to show agreements were made, she should provide it. It said it had allocated any surplus funds in the DP account against support provided by agency B but a shortfall remained which Ms X must pay. It said a repayment plan could be arranged.

Analysis

17. The Council has asked Ms X to pay £1,146.71 which was incurred when she employed a care agency that charged a higher hourly rate than its DP rate. Ms X says that her social worker agreed she could use surplus funds in her DP account to cover the difference.
18. I have carefully considered all the information provided and there is no evidence to support Ms X’s position that she was given permission. The case notes for Ms X make no mention of this agreement but do show the preceding discussions Ms X had about the problems with agency A and the subsequent contacts when the money was running out.
19. As part of its investigation into Ms X’s complaint, the Council asked the social worker about this. The social worker said the conversation did not take place. She said she was on maternity leave at that time and says a conversation did take place when agency A was being set up the previous year as it was the only one that would accept DP’s. The social worker also confirmed that she knew the manager of agency A in a professional capacity.
20. Ms X signed the direct payment agreement which stated that the service user would be responsible to pay for any care costs above the funding amount. I note Ms X says she was required to sign this document without reading it. However, evidence does not support this as the document was emailed to Ms X during Covid-19 restrictions and so she had time to consider the document and take advice before signing it.
21. The Ombudsman makes decisions based on evidence and as there is not any in this case to show the Council agreed Ms X could use the surplus funds to pay the additional cost of agency B, I cannot say it is at fault.

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Decision

22. I will not pursue the complaint further as there is no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman