Summary: Ms B complains the Council initiated a safeguarding investigation into unfounded allegations of financial abuse against a service user, Mr Y. She says the Council suspended her direct payments and her bank accounts were frozen, leaving her destitute. The Ombudsman does not find fault in how the Council conducted the safeguarding investigation or stopped direct payments.

The complaint

1. The complainant, who I refer to as Ms B, complains the Council started a safeguarding investigation into allegations that she had financially abused a service user. She says the allegations were completely unfounded. Ms B says the Council stopped her direct payments and her bank accounts were also frozen as a result of the investigation. Ms B says this left her destitute and the service user without care. Ms B says the GP expressed concerns about the risk to the service user, and he did not want any other carer. Therefore, Ms B continued to provide care without pay to prevent his health from deteriorating.
2. Ms B says the Council has now reinstated the direct payments, which she says demonstrates she had not done anything wrong. She asks the Council to reimburse her for loss of income while she continued unpaid care for the service user.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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(i), as amended)

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How I considered this complaint

6. I considered the information Ms B provided and spoke to her about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Ms B and the Council for their comments, before making a final decision.

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What I found

Law, Guidance and Local Policies

7. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in settings other than care homes. A council has discretion to charge for non-residential care following a person’s needs assessment. Where it decides to charge a council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
8. Where a council has decided to charge, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. A council must not charge more than the costs it incurs to meet a person’s assessed eligible needs.
9. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. There are three main ways a personal budget can be administered:

• as a managed account held by the local authority with support provided in line with the person’s wishes;
• as a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes; or
• as a direct payment.

10. Direct payments are monetary payments made to individuals who ask for one 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 has a key role in ensuring 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.
11. The Care and Support Statutory Guidance (“the Guidance”) says that, where someone with capacity was receiving direct payments, but then loses capacity to consent, the council should discontinue direct payments to that person and consider making payments to an authorised person instead. In the interim the council should make alternative arrangements to ensure continuity of support for the person concerned.
12. The Council has a policy on direct payments, which is in line with the Care and Support Statutory Guidance (“the Guidance”). It says the Council commissions an organisation to manage direct payment money on behalf of the individual. It says any non-payment of the person’s assessed contribution will result in the direct payment being stopped and recovery action taken to recover the non-payment. Where appropriate the care and support will be arranged by the Council.
13. The policy says the Council may terminate a direct payment if an individual fails to comply with a condition imposed under regulations, or if it no longer believes it is appropriate to make the direct payment. For example, it may discontinue the direct payment if it is apparent it has not been used to achieve the outcomes of the persons’ care and support plan.
14. The policy says that, if the Council is considering discontinuing a direct payment, they will make reasonable attempts to discuss all available options with the individual, before making the final decision to terminate. It will make all reasonable attempts to conduct a review of the plan and agree an alternative care and support provision with the individual, their care and independent advocate.
15. The Council will normally give four weeks’ notice before the direct payment is discontinued. It is extremely unlikely the Council would discontinue without notice. However, it may do so in serious cases, for instance where the authorised person managing the direct payment is not acting in the best interests of the individual.
16. A council must make enquiries if it has reason to think a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themself. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)

Background

17. Mr Y requires support with his personal care and nutritional needs. The Council first assessed Mr Y in 2008 and agreed to fund 23 hours of care through direct payments. Mr Y used the direct payments to employ Ms B as his carer.
18. Initially, the Council supported Mr Y with managing his direct payments through its contracted account support provider. The Council says that in 2015, Mr Y and Ms B disengaged from the support provider for 10 months, by not providing all timesheets, spending money outside of care, such as for activities and entertainment packages, and making overpayments to Ms B. This meant the balance in the direct payments account was too low. The council says the arrangement therefore ceased in January 2016.
19. The Council says it agreed to continue direct payments to ensure the consistency of care to Mr Y, while it considered alternative account management options. This meant Mr Y was responsible for managing the direct payments himself in the interim. The Council says that since Mr Y became responsible for managing his own direct payments, its concerns around the management of the account increased.
20. In 2017 the Council noted that large sums were withdrawn from the direct payments account for holiday pay to Ms B. In early 2018 the Council made a referral for an independent advocate for Mr Y. The advocate said Ms B and Mr Y were open to an offer of a managed direct payment account. The Council arranged the transfer to a managed account. However, the Council continued to note concerns about costs outside of the agreed care plan being paid for by direct payments. The Council was also concerned that Ms B was managing Mr Y’s finances, which could be a conflict of interest as she was his employee.
21. In April 2018 Ms B called the Council to say that Mr Y could not afford his client contributions so would not be paying them.
22. The Council says Ms B was paid a higher than usual hourly rate. The recommended rate for a personal assistant was £9 per hour. The Council says Ms B was receiving 13.50 per hour. The Council held a meeting with Ms B in August 2018 in which it said she should only receive £9 per hour. In the same month, Mr Y’s advocate informed the Council that Mr Y had received a letter from HMRC advising that he owed a large amount of tax.
23. The transfer to the managed account was delayed due to Mr Y not paying his assessed contribution into the account. Between April and September 2018, a contribution of around £1,300 was due but none was paid. Mr Y continued to not pay contributions into 2019.
24. In May 2019 the Council completed a mental capacity assessment for Mr Y. It found that Mr Y had capacity to make informed decisions about his care and support needs but not about his financial affairs.
25. The concerns on the account continued, including non-payment of client contributions and spend outside of the agreed care plan. In July 2019 the Council considered making an application to the Court of Protection (“CoP”) for deputyship over Mr Y’s financial affairs. A solicitor that was representing Mr Y said they would apply for deputyship rather than the Council. However, this fell through as Mr Y did not have sufficient savings to pay for the deputyship service.
26. By September 2019 Mr Y had continued not to pay his contributions and therefore there was a deficit on the account of around £5,000.
27. In October 2019 the Council noted concerns that Mr Y had a lack of access to his finances and insufficient funds to pay his contributions and otherwise. Based on the assessment that Mr Y lacked capacity to manage his finances, the potential conflict of interest in Ms B managing his account, and the various concerns raised, the Council decided to make a safeguarding referral.
28. The safeguarding investigation found there were concerns about potential financial abuse by Ms B. The Council therefore reported these concerns to the police. The police started an investigation in January 2020.
29. In late January 2020, the Council decided to suspend Mr Y’s direct payment, due to its concerns about a breach of its direct payment policy. In place of the direct payment, the Council contacted a care provider to arrange a 24-hour, live-in carer for Mr Y.
30. In February 2020, the Council stopped the direct payments. On the same day social workers attended Mr Y’s home with carers from the new care provider. Mr Y refused access to the social workers and carers and said he did not want support from anyone other than Ms B.
31. Ms B says at this point her income was cut off. Her bank accounts were also frozen. Ms B says the police told her the Council had suspended the bank accounts. The Council says one of its financial investigators made the request to freeze the bank accounts. However, they did so on behalf of the police and were, in effect, acting as the police at that time.
32. Ms B says Mr Y’s GP contacted her and raised concerns about Mr Y’s mental health, including suicidal thoughts, and said that she needed to go back to care for him. She therefore did so and continued to care for Mr Y without payment for over a year. The Council says it was not aware that Ms B was continuing to care for Mr Y until it conducted a further needs assessment more than a year late, in June 2021.
33. In late February 2020 the police decided not to take any further action due to a lack of evidence of financial abuse. The police informed the Council of its decision. The Council says its financial investigator informed the National Crime Agency that the investigation was concluded and that it could unfreeze the bank accounts, on the same day. Ms B says the bank account was not unfrozen for 24 weeks after this. The Council says that any complaint about this is for the police and/or National Crime Agency.
34. At around the same time, the Council wrote to Mr Y, care of Ms B, to explain that it had ended the direct payment with immediate effect. It said it had arranged alternative care, but Mr Y had declined this and he should contact the Council if he changed his mind.
35. In early March 2020, the Council says that social workers tried to visit Mr Y but he would not see them.
36. In July 2020 the Council applied to the CoP to appoint a deputy for Mr Y’s financial affairs. There were delays in the court hearing taking place due to pressures of the coronavirus pandemic. In January 2021, as part of the court proceedings a referral was made for an independent mental capacity assessment. The Council says this also found Mr Y lacked capacity to manage his financial affairs. Mr Y challenged this, so a court appointed capacity assessor conducted a further assessment. The Council says this also found Mr Y lacked capacity in respect of his financial affairs.
37. In May 2021, the Council completed an updated care assessment for Mr Y. It found Mr Y would receive 22.5 hours care and support per week.
38. In August 2021 the Council held a meeting with Mr Y and Ms B. Mr Y requested the Council reinstate his direct payments with Ms B as his carer. The Council agreed to this on the basis the direct payments would be managed by an independent third party. It reinstated the direct payments with Ms B as carer in October 2021. The direct payments are now managed by a third-party solicitor.
39. The Council says the CoP did not make any final order about the way Mr B’s direct payments would be managed as the parties reached an agreement for a third party to take over management.

Findings

40. I have separated my findings into the following parts of Ms B’s complaint:
• The Council did not inform Ms B of concerns about management of the direct payments or a debt on the account before it discontinued the direct payments
• The Council did not have grounds to start a safeguarding investigation or refer the matter to police
• The Council froze Ms B’s bank accounts for 24 weeks and discontinued Mr Y’s direct payments for over a year leaving her destitute

Communication about concerns regarding management of direct payments

41. Ms B says that from around 2016 a new person came onto the direct payments team and was not happy about her supporting with Mr Y’s direct payments. However, she says the Council did not make her aware of any debt on the account and the first she was aware of any significant concerns was when she received a call from the Council in January 2020.
42. The Council has provided letters dated early 2019 and early 2020, addressed to Ms B, which say Mr Y’s contributions to his direct payments have not been paid and therefore the account was in debt. There is also a clear chronology of occasions on which the Council raised concerns with Ms B between 2016 and 2019 about the way direct payments were managed.
43. For this reason, I do not find fault in the way the Council communicated its concerns about the management of the account to Mr Y or Ms B, before the police investigation.

Grounds for starting safeguarding investigation and referral to police

44. I also do not find fault in the Council starting the safeguarding investigation or referring its concerns to the police.
45. The police did not consider there was enough evidence of financial abuse to warrant prosecution. However, this does not mean the Council had no basis on which to be concerned or to make the referrals. The Council has clearly outlined the concerns it had about the management of the account, the conflict in Ms B being involved in managing Mr Y’s finances when she was an employee of his, and other concerns raised during the course of its enquiries.
46. Councils must make referrals to safeguarding if they have concerns about possible abuse. If there is a suspected criminal offence, they should also refer the matter to the police. I cannot criticise the Council for taking this action based on the information it had available and the concerns it had.

Freezing of bank accounts and discontinuation of direct payments

47. I do not find fault with the Council in respect of freezing Ms B’s bank accounts and cannot find that stopping the direct payments caused significant injustice to Ms B.
48. There may have been some inconsistency in what the police and Council relayed to Ms B about who took the action to freeze the bank accounts. However, freezing bank accounts is a police power and would only be undertaken on behalf of the police. I cannot investigate actions carried out by, or on behalf of the police, and cannot find fault with the council for how it communicated with Ms B around this.
49. My understanding is that Ms B’s bank accounts should have been unfrozen when the police investigation ended, at the end of February 2020. It appears this did not happen, and she remained without access to her bank accounts for far longer. However, any complaint about this would be for the police.
50. I have not considered whether there was fault in the Council stopping Mr Y’s direct payments. This is because any injustice arising from this fault would be to Mr Y, who is not the complainant in this matter. While Ms B was involved in supporting Mr Y with his direct payments, this was not as a formally authorised person. Her salary came from Mr Y’s direct payments as an employee of his. When the Council stopped Mr Y’s direct payments, Mr Y would have needed to terminate Ms B’s employment due to no longer receiving funds to continue that package of care. Any issues over the way that employment was terminated, for instance redundancy payments, were a personnel matter between Mr Y as the employer and Ms B as employee.
51. Ms B has provided reasons for why she continued to provide care to Mr Y without payment, including concerns the GP raised about his mental health. However, there are safeguarding procedures and healthcare for situations in which a person's mental health deteriorates. Again, Mr Y is not the complainant so I cannot consider the impact on him. It was Ms B’s decision to continue to provide care on an informal basis when the direct payments had stopped. I cannot find the Council is responsible for paying Ms B for providing that care.

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Final decision

52. The Council is not at fault in how it conducted the safeguarding investigation or stopped direct payments.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman