Summary: Miss X complained about the way the Council charged her late father Mr Y for his care and support, its failure to pay towards his care and support and about the lack of respite support provided to her as his main carer. There was no fault in the way the Council charged Mr Y for his care contributions or for a care home stay or for ending the direct payment arrangement. The Council was at fault for delay in monitoring the direct payment arrangement, poor communication around the decision to end the direct payment, delay in refunding an overpayment and for the delay in dealing with Miss X’s appeal about this. It has agreed to apologise and make a payment to acknowledge the uncertainty and frustration this caused and to review its procedures.

The complaint

1. Miss X complained about the way the Council charged her late father Mr Y for his care and support, its failure to pay towards his care and support and about the lack of respite support provided to her as his main carer.
2. In particular, she complained the Council:
1. failed to explain what he would be charged and how the charges were calculated when Mr Y had a 12 week care home stay starting August 2019 whilst Miss X had an operation. It then failed to charge him correctly for the stay.
2. overcharged Mr Y for his personal care contributions and failed to refund an overpayment in personal contributions made by Mr Y.
3. withdrew the direct payments, accusing Miss X of mismanaging them and refused to reinstate them unless she agreed to a managed account. It also failed to consider her appeal about this.
4. failed to put a commissioned care package in place which it agreed to do in December 2022.
5. failed to provide Miss X with any respite since 2019.
3. Because of this Miss X says they had to borrow money to ensure Mr Y continued to receive his care and support package. This has also caused Miss X significant distress and frustration.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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) In this case I have exercised my discretion to consider events back to 2019 as the issues have been ongoing since then and Miss X has continually sought to resolve them.
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
8. 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

9. I have considered the information provided by Miss X and discussed the complaint with her on the telephone. I have considered the Council’s response to my enquiries.
10. I gave Miss X and the Council the opportunity to comment on a draft of this decision. I considered the comments I received in reaching a final decision.

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What I found

The relevant law and guidance

Assessment of needs

11. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. Where the council identifies “eligible” care needs it will prepare a care and support plan that sets out how those needs will be met.
12. Councils have a duty to meet an adult’s unmet eligible needs for care and support, subject to their financial circumstances.

Charging for care

13. The Care Act 2014 sets out the legal framework for charging. Councils can make charges for care and support services they provide or arrange. They must do so in line with the Care and Support (Charging and Assessment of Resources) Regulations 2014. Charges may only cover the cost the council incurs.
14. Councils must assess a person’s finances to calculate how much an individual should contribute to the cost of their care. The Care and Support Statutory Guidance sets out how councils should treat capital and income in assessing a person’s finances. For non-residential care services charges should not reduce a person’s income below Income Support plus 25% (also known as the minimum income guarantee). People in residential care will contribute most of their income minus a small amount for personal expenses (the personal expenses allowance) towards the cost of their care and support.

Charging for respite and short term residential care

15. In the case of a short-term resident in a care home not exceeding eight weeks, councils have discretion to assess and charge as if the person were having their needs met other than by providing accommodation in a care home (i.e. in the same way as for non-residential care). The rules are different for temporary or short term stays (those unlikely to exceed 52 weeks). In those cases, income and earnings are treated in the same way as for permanent care home residents although certain housing related costs are disregarded in the financial assessment.

The personal budget

16. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning. It should confirm the final amount of the personal budget through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs.
17. There are three main ways a personal budget can be administered:
• as a managed account held by the council 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. (Care and Support Statutory Guidance 2014)

Direct payments

18. 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.
19. After considering the suitability of the person requesting direct payments against the conditions in the Care Act 2014, the council must decide whether to provide a direct payment. In all cases, the council should consider the request as quickly as possible. Direct payments should be reviewed within the first six months of making the first payment.
20. Where direct payments are refused, the council should explain its decision in writing to the person who made the request. It should also tell the person how to appeal against the decision through the local complaints procedure. (Care and Support Statutory Guidance 2014)
21. The guidance sets out that where it becomes clear that payments, or returns detailing employee information deductions, have not been made, or that the individual is failing to meet their obligations as an employer generally, the direct payment scheme should be reviewed and consideration given to whether alternative arrangements that result in the direct payment recipient no longer acting as the employer need to be made. Councils might also discontinue payments if the person fails to comply with a condition imposed under regulations to which the direct payments are subject or if for some reason the council no longer believes it is appropriate to make the direct payments.
22. If a council decides to withdraw direct payments it should conduct a review of the plan to agree alternative care and support provision.

Background

23. Mr Y lived with Miss X. Mr Y had a diagnosis of dementia. Miss X had lasting power of attorney for Mr Y and so looked after his finances. In July 2019 the Council assessed Mr Y as requiring 17.5 hours of support per week to assist with personal care, meals and drinks and assisting with medication. It also agreed to provide six weeks of respite for Miss X. Miss X requested direct payments to employ a personal assistant to support Mr Y. The Council completed a financial assessment and advised Mr Y his financial contribution would be £41.66 a week.
24. There is a significant amount of correspondence between Miss X and the Council which I have considered. The following is a summary of the main events and does not refer to all the correspondence and communication between Miss X and the Council.

Care home stay in 2019

What happened

25. In August 2019 Miss X contacted the Council to request six weeks respite for her father as she was due to receive treatment for a medical condition. The Council agreed to this, and Mr Y moved into a care home in late August 2019.
26. In late September 2019 Miss X contacted the Council to complain as she had no written agreement regarding the cost of the care package and no direct payment card yet. She also wanted to discuss extending Mr Y’s stay at the care home. The Council apologised that the paperwork was not processed. It explained Mr Y’s contribution to his care package and respite stay would be £41.66 per week.
27. In mid-October 2019 Miss X met with a Council officer to discuss the financial implications of Mr Y staying at the care home for a further six weeks. The Council officer explained that a further six weeks stay would be charged as a short term placement, rather than as respite. In a follow up email the officer explained Mr Y’s weekly budget was £259.88 per week. When his client contribution was deducted he would receive £218.22 from the Council. This was suspended when Mr Y entered respite. Mr Y’s respite stay was charged at £41.66 per week. When his stay became a short term stay the contribution would increase to £147.06 per week. Miss X queried whether Mr Y’s stay could all be recorded as a short term stay so that she could use the respite later in the year. The Council confirmed this could happen but Mr Y’s contribution would increase as a result.
28. The Council wrote to Miss X in October 2019 setting out how the Council calculated the contribution of £147.06 per week.
29. Mr Y returned home on 22 November 2019.
30. The Council sent Ms X three invoices for the care home stay which charged the first six weeks as respite and the rest as a short-term stay. The invoices recorded Mr Y left the care home on 30 November.
31. Miss X wrote to the Council in January 2020 and requested that the care be charged at the respite rate. She also advised that the care home stay ended 22 November not 30 November. The Council corrected the amount owed. Miss X contacted the Council again about this in February 2020.
32. Internal emails show the Council was satisfied it had charged Miss X correctly. I have seen no evidence it contacted Miss X to advise her of this at that time or of how it had considered her request that all the stay be charged as respite.
33. Miss X did not pay the invoices. Due to the COVID-19 pandemic, the first lockdown for which commenced in March 2020, the Council did not pursue the debt.
34. In January 2021 the Council assigned a social care assessor to review Mr Y’s care needs. The assessor queried the debt from 2019 which remained on the account. The Council confirmed the debt was still owed. The Council emailed Miss X setting out a summary of the debt.
35. Miss X emailed the Financial Assessments Manager raising concerns about Mr Y’s contributions and about the charges for the care home stay. The Manager responded and provided the Council’s leaflets setting out how residential and non-residential care was charged. They explained the calculations and charges were correct and that Miss X had been made aware of the charges before the care commenced. The Council considered copies of Mr Y’s bank statements and was satisfied he had sufficient funds to pay the debt.
36. The Council wrote to Miss X in mid-March 2021 confirming Mr Y owed £1159.28 for the care home stay and included a breakdown of the charges showing how it was calculated. It asked her to pay within 14 days.
37. Miss X complained to the Council in early April 2021 about the charges and other issues. The Council responded in early May 2021. The response set out how the charges were calculated. It apologised that Mr Y was originally charged up to 30 November rather than 22 November. It explained respite was charged by days and short term care by nights which was why the charges appeared to overlap.
38. The Council wrote to Miss X on 29 November 2021 and enclosed copies of the invoices related to the debt. It wrote again on 31 December 2021 requesting Miss X pay the debt.
39. In February 2022 Miss X complained to the Council about a number of issues including the care home bills. She provided a copy of a letter she had sent to the Council in December 2021 which it said it had not received. The Council responded in April 2022. It said as a goodwill gesture, in considering Miss X’s health at the time, it would credit £647.46 to Mr Y’s account which was the difference between the cost of respite care and short term care.

Findings

40. The Council charges for respite stays in the same way it charges for domiciliary care. Mr Y received a six week respite stay in line with his care package. When Miss X requested an extension of her father’s respite stay the Council explained that it would no longer be respite and would be charged differently. It wrote in October 2019 providing a calculation of the short-term care cost. Miss X agreed to this. The Council was not at fault.
41. The Council was at fault when it originally invoiced Miss X for the cost of the stay up to 30 November rather than 22 November. The Council sent a credit invoice and apologised for this. This was an appropriate way to resolve the injustice caused by this fault.
42. In early 2020, Miss X first requested that the stay be charged as respite for 12 weeks. The Council discussed this internally and did not agree to this. It was satisfied it had charged Mr Y correctly but failed to respond to Miss X. This failure to communicate its decision to Miss X was fault and caused Miss X frustration. However, the Council took no recovery action for the debt during 2020 so I cannot say this caused a significant injustice. After the social care assessor questioned the debt in January 2021 the Council corresponded with Miss X and explained how the debt was calculated. The Council also considered whether Mr Y could afford to pay the debt and was satisfied he could. It wrote to Miss X and sought payment but Miss X continued to dispute the debt.
43. The Council calculated the charges in line with its policy and procedures and the relevant law and guidance. It was not at fault. In any case, Miss X remained unhappy and complained further and in April 2022 the Council agreed, as a goodwill gesture, to charge Miss X at the respite rate.

Personal contributions, refund, respite for Miss X and ending of direct payment agreement

44. In August 2019 Miss X signed and returned a direct payment agreement. Within this it said:
• The Council will pay your direct payment (less any contribution you have to make) directly into the account monthly in advance.
• You and/or your representative agree to pay your financial contribution directly into the direct payment account. This contribution should be paid monthly preferably by standing order from your personal account as the easiest way. The Council will monitor the payment of any assessed financial contribution and Council staff will contact you if they notice any irregularity. Where the Council becomes aware that the financial contribution has not been paid, reassessment of your care and support needs may be required.
• This agreement may be terminated by the Council giving four weeks’ notice to you and your representatives if you or your representative have failed to comply with the terms of this agreement.
• Where this agreement is terminated and you continue to have eligible care and support needs, the Council will work with you and/or your representative (s) to meet your needs in a different way.
45. During Mr Y’s care home stay, the Council set up direct payments for Mr Y’s personal budget.
46. Miss X spoke to a Council officer in late August 2019. The officer noted at that point Miss X had not received her payment card. The officer noted they told Miss X that the Council would pay £259.88 on to the card, and she would have to pay £41.66 on to the card.
47. In September 2019 the Council wrote and advised Miss X that Mr Y was required to pay a personal contribution of £41.66 per week towards his care costs.
48. In mid-October 2019 Miss X met with a Council officer to discuss the financial situation. In a follow up email, the officer explained ’the agreed weekly provision is £259.88 therefore when the client contribution of £41.66 is deducted you will receive £218.22’.
49. The Council wrote again in May 2020 to advise that Mr Y’s contribution had increased to £48.65 from April 2020 following its annual review of contributions. It sent invoices to Miss X on a monthly basis, setting out the client contributions required towards Mr Y’s care costs. Miss X said she did not receive the invoices.
50. Miss X used the direct payments to pay for a personal assistant to support Mr Y. She did not make any payments of client contributions into the direct payment account.
51. In mid January 2021 Miss X requested an increase in Mr Y’s direct payments. The Council allocated a social care assessor who queried the historic debt from the care home stay on the account.
52. In looking into Mr Y’s direct payment account the Council established Miss X had not paid any of Mr Y’s personal contributions into Mr Y’s direct payment account. The Council established that in setting up the account it had failed to set up a task for financial monitoring. It found it had originally proposed a referral to a third party company to manage the direct payment but this had not happened. It had no information on how the personal assistant was paid.
53. The social care assessor proposed an increase in Mr Y’s weekly hours from 17.5 to 23 plus a weekly respite payment so Miss X could use respite as required and requested that Miss X speak to the Direct Payments Team to set up the client contribution payments. The assessor contacted Miss X in February and early March 2021 but Miss X was not available or not well enough to speak.
54. In early March 2021 the social care assessor emailed Miss X and confirmed Miss X needed to set up Mr Y’s care contribution. They said they had an assessment open looking to provide respite and some extra weekly hours. However, to meet the terms of the direct payment agreement Miss X needed to pay the client contribution into the account. The email said ‘if you have copies of payslips and the finance team can see the contribution was paid direct to the carer (as you suggested) then an agreement can be come to in terms of it not being required’. They advised if they did not hear from Miss X the assessment would be closed.
55. From March 2021 the Council’s invoices to Miss X set out the direct payment total and the client contribution. On each invoice it stated “This payment is made for the period shown and excludes your assessed contribution which will need to be paid into your nominated direct payment account”.
56. As Miss X did not contact the Council a social worker visited the property and met with Miss X and Mr Y. At the meeting Miss X said the Council owed her money and produced calculations. The Council wrote to Miss X in April 2021. It said it had looked at the account and her calculations and found the difference between her expected payment and what was paid by the Council was Mr Y’s contribution. It calculated the missing contribution as £2043.30.
57. Miss X complained to the Council about the contributions and other issues. She provided the spreadsheet and said the Council had not paid the full hourly rate. She said Mr Y had paid his contribution direct to the personal assistant. Miss X said once a new payment plan was in place she would pay his contribution into the account. Miss X also said the Council had under paid Mr Y £5,480.97.
58. The Council responded in early May 2021 and explained that the client contribution needed to be paid into the direct payment account and should not be paid directly to the personal assistant. A review had found the account’s shortfall was because Miss X did not pay the client contribution into the account. It said the Council paid the personal budget into the account less the client contribution. It said the budget was calculated based on a rate of £14.85 an hour but Mr Y’s personal assistant charged £16.00 per hour. The hours could be used flexibly but the Council would not increase the direct payment rate. It noted Miss X had signed and returned the direct payment agreement.
59. The direct payment team contacted Miss X in June 2021 and noted she said she would not pay the contribution until her concerns were addressed. They noted she said she had not received the complaint response of May 2021, so the Council resent it by recorded delivery.
60. In June 2021 the Council sent Miss X a new pre-paid card with a different account number. From early June Miss X was unable to use the existing card to pay Mr Y’s personal assistant. The Council says Miss X activated the new card in mid-July 2021.
61. In July 2021 the Council wrote to Miss X requesting that she arrange payment of Mr Y’s client contribution as a matter of urgency. The letter explained the payment should be made into his direct payment account. The letter said the Council understood she was waiting for her complaint response but the contribution would remain unchanged. It said she was in breach of the terms and conditions of the direct payment. The letter set out that if the situation was not rectified within 30 days the Council ‘will end the direct payment and commence a council commissioned care service via a care agency. Please arrange a standing order by 23/08/21 for the required weekly contribution and contact the debt recovery team to discuss repayment of the outstanding monies’.
62. As Miss X did not contact the Council or set up the contribution the Council cancelled the direct payment from late August 2021, reviewed Mr Y’s support plan and arranged for a commissioned care package for Mr Y.
63. In late August 2021 the care company contacted Miss X to set up a commissioned care package. Miss X was confused why the care company called. The social care assessor spoke to Miss X and explained the Council had sent recorded delivery letters and emails advising the direct payment had ended. Miss X said she no longer had a computer and her father may have hidden the letters. Miss X said she had paid the personal assistant herself and was intending to go to the bank to pay the contribution and clear the debt. At this stage Miss X owed the Council £6042.98.
64. The social care assessor contacted Miss X again to ask if she had transferred the outstanding balance. Miss X reported she was going to the bank that day. Miss X asked how she would get the money she was owed from January 2021 onwards for the increased care package. The social care assessor explained the increase was not in place as Miss X had failed to contact the Council about the new support plan and the debt she owed. Miss X again said she could not access her computer so did not receive any letters. The assessor explained letters were posted about the debt and ending the direct payment.
65. At the end of August 2021 Miss X paid the outstanding contributions. From September 2021 she started paying Mr Y’s contributions into the account on a weekly basis.
66. The Council allocated a social worker due to concerns Miss X was not engaging with the social care assessor and concerns over Miss X’s understanding of the situation. The social worker contacted Miss X to arrange a visit to Mr Y and to discuss the direct payment issues. The social worker noted Miss X was unhappy she had not received respite for two years and queried why her father’s direct payment was stopped. Miss X was not willing to meet as she wanted the social care assessor to deal with her concerns.
67. The social worker visited Mr Y in September 2021 to carry out a welfare check after the Council received a report he had been found wandering and because Miss X had refused a commissioned care package. Miss X was not in but the social worker spoke with Mr Y and left copies of letters for Miss X.
68. Following this, Miss X spoke to the social worker’s manager. She was unhappy they had conducted a visit. Miss X said she was in arrears for his care. The notes record Miss X reported Mr Y could not have a commissioned care package as he was anxious around people and needed direct payments. Miss X asked that her case be allocated to a new social worker.
69. In October 2021 a new social worker reviewed Mr Y’s care and support plan. They recommended three visits per day. They noted Miss X had reinstated Mr Y’s personal assistant and his care needs were met by private care but Miss X requested assistance with this. They noted Miss X had stopped council commissioned care. Due to issues with how the direct payments were managed they noted any future direct payment would need to be third party managed.
70. Following this, in November 2021 the social worker spoke with Miss X. The social worker advised Miss X that direct payments could be restarted with the support of a third party council commissioned service. Miss X did not agree to this. She advised she had been unable to pay Mr Y’s personal assistant and was in arrears.
71. Miss X said the previous direct payment account was closed and a new one opened without any notification to her. She said she had been paying client contributions into the account however was unable to make withdrawals and had been unable to pay her father’s personal assistant since July 2021. The social worker advised the direct payment was stopped in August 2021 and she was advised of this at the time. Miss X denied knowing this. The social worker advised a formal package of care was put in place at the time but was cancelled at her request. Miss X disagreed.
72. The records show the Council transferred funds from the old direct payment account to the new one in July 2021 and it paid its contribution for Mr Y’s care for July and August 2021 into the direct payment account. Miss X has provided a screen shot which shows the account as ‘deposit only’ in October 2021. The account statement shows Miss X made no withdrawals on the account after late May 2021. In response to my enquiries the Council says the account was not deposit only and Miss X has not provided any invoices or evidence to show she paid Mr Y’s personal assistant during this period.
73. The social worker telephoned Miss X three times in December 2021 but either Miss X did not answer or was unwilling to speak at that time. The social worker spoke to Miss X in January 2022 and noted Mr Y was well and settled. They sent Miss X a letter that month which said that during their meeting in October 2021 Miss X had requested the direct payment be reinstated. They advised this would need to be via a third party managed account. They said Miss X had indicated she would not sign a new direct payment agreement or complete a new financial assessment and so the Council could not offer a direct payment.
74. In February 2022 Miss X complained to the Council about a number of issues including overcharging of personal contributions, the Council not increasing the personal budget, requiring a third party managed direct payment and closing the direct payment account with Mr Y being unable to access the funds he paid in.
75. The Council responded in April 2022. It advised that the account was reconciled and surplus funds were transferred back to the Council. As Mr Y continued to pay by standing order his client contributions continued to be deposited into the pre-paid card account. The Council had transferred the funds to a holding account and closed the pre-paid card to stop this continuing. It proposed using the funds to pay the outstanding invoice of £511.82 for the care home stay and £4,883.70 for Mr Y’s client contributions. It said it would refund the balance of £4,026 to Mr Y’s account.
76. The Council said it had no record that it sent Miss X a copy of the direct payment agreement she had signed in August 2019 when the account was originally set up. It apologised for this oversight and said it had posted a copy in July 2020.
77. It said there were several opportunities for Miss X to resolve the client contribution issues and continue the direct payment. It had ended the payment as it was not resolved and it had offered a commissioned care agency which Miss X declined. It offered to reinstate a third party managed direct payment which would also ensure that employment responsibilities were met but Miss X refused this. It had therefore offered alternatives to meet Mr Y’s needs.
78. It said it had recommended respite care in Mr Y’s review. However a direct payment could not be reinstated as the client contribution was outstanding.
79. It again offered to put a managed account in place or to arrange a Council commissioned care package.
80. The social worker spoke to Miss X in May 2022. Miss X did not want to recommence the care plan using a third party company to manage the direct payments. She also said she had not had a response to her request to appeal the decision to use a third party managed account. The social worker advised the care needs review would remain incomplete until Miss X confirmed if she wished to use a commissioned service or managed account.
81. Miss X continued to raise issues and complaints.
82. The Council wrote to Miss X in August 2022 to advise a refund of £4,026 was due. It enclosed a refund form for completion and return. The Council says it has not received this.
83. The Council wrote to Miss X in December 2022 in response to her appeal regarding the use of a third party managed account stating it had no further comments to make. The Council referred Miss X to us.

Findings

Client contributions

84. The Council was entitled to charge Mr Y a contribution towards the cost of his care services. When Miss X queried how much she would receive in direct payments an officer told Miss X, in August 2019, that she would receive £259.88 on the direct payment card and she would have to pay £41.66. This was fault. Mr Y’s personal budget was £259.88. The Council was required to pay an amount net of Mr Y’s contribution (i.e. £218.22). In a later email in October 2019 a council officer explained the direct payments were net of Mr Y’s contribution. However, this caused Miss X some initial confusion and uncertainty as she believed the Council had underpaid Mr Y’s direct payments.
85. The Council completed a financial assessment which set out how much personal contribution Mr Y was required to pay towards his care package. It provided this information to Miss X in September 2019. I have seen no evidence of fault in the way it did this.
86. Miss X signed a direct payment agreement which set out how direct payments should be managed. The Council in its complaint response in April 2022 said it had no record Miss X received a copy of the signed agreement at that time and apologised. It sent a copy of this in July 2020. Miss X received regular invoices which set out the personal contributions that needed to be paid into the account. Miss X did not do this. Miss X says she paid Mr Y’s contributions to the personal assistant directly but I have seen no other evidence to support this and Miss X later paid the contributions into the direct payment account. In addition, Miss X paid Mr Y’s personal assistant at a higher rate than that covered by the budget so it is likely Miss X would have needed to pay an extra amount in addition to the personal contribution to fund Mr Y’s care package.
87. The Council was not at fault for requiring Miss X to pay the unpaid client contributions into Mr Y’s direct payment account. However, when the Council set up the direct payment account it failed to set up a task for financial monitoring. It also failed to follow up the option of a third party managed account when it first set up the direct payment account. This is fault and meant the situation went unnoticed for longer than it should have adding to the confusion and frustration caused to Miss X.
88. The Council then had difficulties contacting Miss X. When the social worker met with Miss X it was clear from the figures she provided she did not understand that the Council’s contribution was the personal budget minus Mr Y’s contribution. Miss X’s complaint at that time also set out she believed the Council would contribute the equivalent of the hourly rate when this was not the case. It was required to contribute the equivalent of 17.5 hours of the hourly rate minus the client contribution. However, between January and July 2021 the Council repeatedly explained that Miss X needed to pay the personal contributions into Mr Y’s account, and why.
89. There were further delays in resolving Miss X’s concerns, but I cannot say these were due to Council fault. The records show Miss X did not always respond to contact from the social care assessor and social worker. Miss X also says she did not receive all the correspondence sent by the Council but I cannot hold the Council responsible for this.

Ending the direct payments and refund

90. The Care and Support Statutory Guidance sets out that direct payment arrangements should be reviewed within six months of making the first payment. The Council failed to do this. This was fault. This meant the care home debt and Miss X’s failure to pay Mr Y’s contributions were picked up over a year later than they should have been.
91. The records show Miss X did not pay Mr Y’s client contributions despite signing a direct payment agreement. I acknowledge Miss X may not have initially understood her responsibilities and may not have received a copy of the direct payment agreement. However, the Council spoke with Miss X and wrote to her about this between January and July 2021 explaining what she was required to pay and why. It then explained that unless Miss X made the payments it would end the direct payment.
92. As Miss X had not paid the contributions and was in breach of the direct payment agreement, and due to concerns over the employment arrangement regarding the personal assistant the Council decided to stop the direct payment. The Council considered it was no longer appropriate for Miss X to manage the direct payments and so it ended the arrangement. It was entitled to make this decision having regard to relevant guidance and legislation. There was no fault in the way the Council reached the decision to end the direct payments.
93. The Council wrote to Miss X in July 2021 explaining if she did not pay in 30 days it would stop the direct payment. This was appropriate. However, I have seen no evidence it then wrote to confirm its had stopped the payments and why it had done this. Although it arranged a commissioned care package, it did not contact her to advise it had arranged this, discuss the appropriateness of this or advise her she would be contacted by a care provider. This lack of communication was fault and meant Miss X was only aware of the care provider’s involvement when it contacted her direct. When the care provider contacted Miss X she considered this would not meet her father’s needs and so refused it. So, even on the balance of probabilities, I cannot say that if it had discussed this with Miss X she would probably have accepted a commissioned care package for Mr Y. So this fault did not cause significant injustice.
94. Miss X requested to appeal the decision to end the direct payments. The Council responded to Miss X through its complaints process. Miss X sought a separate appeal of this decision and requested an outcome in July 2022. It was not until December 2022 the Council confirmed it had nothing else to add. This delay was fault and left Miss X with a sense of uncertainty over whether the Council may change its view.
95. By the time Miss X paid into the account in late August 2021, the Council had already reached the decision to stop the direct payments. The Council has a duty to meet unmet eligible care needs so when it stopped the direct payments, the Council offered a commissioned a care package for Mr Y to ensure his needs were met. Then in November 2021 the Council offered Miss X direct payments managed through a third party as an alternative, which Miss X refused. Miss X has concerns about the third party company used by the Council. However, the Council has a contractual agreement with that company which was appointed following a procurement exercise and it was not at fault for using it. Miss X did not propose any alternative provider.
96. Miss X says she was unable to pay Mr Y’s personal assistant between June and August 2021 as she could not make withdrawals from the direct payment account. Miss X has provided evidence to show the account was deposit only in October 2021. I cannot say whether the new account was always deposit only or if this happened after the Council stopped the direct payment arrangement in August 2021. However, the Council says if Miss X has invoices for care provided in this period, and evidence these were paid, it will reimburse the estate. This is appropriate and so I will not investigate this issue further.
97. Miss X chose to continue to pay the personal assistant by a private arrangement to meet Mr Y’s needs. Miss X wants the Council to refund the money paid for this, but this decision was not the consequence of fault by the Council. The Council offered a commissioned care package or third party managed direct payment to meet Mr Y’s needs and to enable it to continue supporting Mr Y. Miss X chose to continue paying Mr Y’s personal assistant privately. The Council was not at fault.

Respite

98. The Council has not funded Mr Y’s care package since July 2021. Miss X says she has not had respite because of this. However, the Council offered a commissioned care package or managed direct payment account to meet Mr Y’s assessed eligible care needs so was not at fault. Miss X did not accept either option. Those alternatives were not Miss X’s preferred options, but they would have provided her with replacement care and a break from her caring role. The Council’s decision to offer these options was taken in accordance with relevant legislation, guidance and policy.

Refund of overpaid contributions

99. Miss X continued to make payments by standing order into the direct payment account, after the Council had stopped the direct payments. The Council had no control over a standing order which had to be stopped by the account holder. This led to an overpayment in Mr Y’s direct payment account.
100. When it closed the account the Council used part of the balance to clear the outstanding debt. It was entitled to do this and was not at fault. However, it was aware that Mr Y had continued to pay into the account and had therefore overpaid his contributions and it did not send a refund form to Miss X until August 2022. This delay was fault. Miss X has not returned the form and I have seen no evidence the Council followed this up further. This is fault. This meant Mr Y was without money he was properly owed. Since Mr Y has died, the Council says it will arrange a refund to Mr Y’s estate. This is appropriate.

Failed to put a commissioned care package in place which it agreed to do in December 2022.

101. Miss X wrote to the Council in December 2022 requesting support. The social worker spoke with Miss X and confirmed by email any care would be a Council commissioned care package but they understood this would not work for Mr Y. They agreed to arrange a respite stay.
102. In mid January 2023 Miss X contacted the Council to request a respite placement as soon as possible.
103. The social worker emailed Miss X. They said that following an assessment of Mr Y’s needs a Council commissioned care package did not appear suitable mainly because he could not be guaranteed the same carer. They advised a managed direct payment was still an option and advised Mr Y was entitled to six weeks of rolling respite throughout the year. They asked if she wished to pursue this. Miss X agreed to this and the social worker assessed Mr Y required a residential dementia placement.
104. Miss X responded that she would accept Council commissioned care. The social worker responded that they would investigate future care options once the respite was arranged.
105. The records show throughout January 2023 the Council contacted several care homes looking for a residential respite placement for Mr Y but was unsuccessful. Miss X identified a possible care home but it later advised it could not meet Mr Y’s needs due to the risk of him wandering.
106. In early February 2023 Miss X identified a care home which could provide a six week placement. Miss X wrote to the social worker in early February 2023 raising a number of concerns. She said no care package was put forward by the Council so she could not have rejected it. She had expressed the importance of continuity of personnel due to her father’s dementia but this was not a rejection of help. To ensure Mr Y was properly cared for she had requested a respite placement whilst a commissioned care package was put in place. She sought confirmation the placement she had found was acceptable.
107. The care home assessed that it could meet Mr Y’s needs which the Council agreed to fund. Mr Y moved into a care home on a respite basis in February 2023. The social worker spoke to the care home who advised Mr Y had settled in well.
108. The social worker contacted Miss X in March to arrange a review before the respite placement ended. They said they would explore a council commissioned care package as part of that process. Miss X had refused to allow the social worker to speak with Mr Y but provided her view of Mr Y’s needs via email. The social worker visited and completed the review with the care home staff.
109. Miss X reported Mr Y wished to return home. In the review the social worker noted Miss X had previously had concerns over the consistency of carers if the Council commissioned a care package and she continued to refuse a managed direct payment account. They assessed Mr Y required a residential dementia placement in the meantime and started consulting care homes.
110. Miss X and the social worker corresponded by email. Miss X remained of the view she would not accept a third party managed direct payment account. In terms of the review she raised concerns about how the door alarm at home would be monitored to prevent Mr Y wandering. Miss X advised she would not be available to look after Mr Y during the day.
111. The social worker emailed Miss X wanting to arrange to speak with Mr Y. They noted Miss X had stated a council commissioned care package was not suitable as it could not guarantee the same carer at each visit and that Miss X had declined a managed direct payment. If Miss X changed her view they would organise this as soon as possible. They said they would organise a short term placement in the meantime.
112. Miss X emailed the social worker in late March. She said she had not said a council commissioned care package was unsuitable. She said interaction with social workers was traumatic for Mr Y and she was empowered to represent his wishes as his attorney.
113. The social worker emailed Miss X in early April 2023. They asked if Miss X wished to explore a council commissioned care package although they could not guarantee the same carer for each care call. They requested that she agree to them visiting Mr Y to ascertain his wishes about his care and support. However, Mr Y became unwell and died in April 2023 before a new placement was arranged.

Findings

114. Although the Council proposed a commissioned care package in December 2022 it could not have arranged that immediately. It needed to assess Mr Y’s care needs and then identify an appropriate care provider. The Council had a duty to meet Mr Y’s eligible unmet needs as Miss X was no longer able to meet these. The Council had concerns over Mr Y’s requiring consistency of carers which Miss X had raised previously. In the meantime, it agreed to arrange a respite placement for Mr Y. This was appropriate to meet his care needs and was not fault. Towards the end of the respite placement, the social worker sought to explore how to meet Mr Y’s needs could best be met. However, Mr Y died shortly before the end of the respite stay.

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Agreed action

115. Within one month of the final decision the Council has agreed to:
• apologise to Miss X and pay her £300 to acknowledge the uncertainty and frustration caused by its delay in monitoring the direct payment arrangement, its failure to advise her it had commissioned a care provider and for the delay in dealing with her request to appeal the decision to stop the direct payment.
• provide evidence of the action it has taken to refund the overpayment of contributions to Mr Y’s estate.
116. Within two months of the final decision the Council has agreed to review its procedures to ensure that when it decides to end a direct payment arrangement it writes to the person concerned to confirm the arrangement has ended and sets out the alternative arrangements it has put in place to ensure the adult’s eligible needs for care and support continue to be met.
117. The Council should provide us with evidence it has complied with the above actions.

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Final decision

118. I have completed my investigation. There was evidence of fault by the Council causing injustice which the Council has agreed to remedy along with service improvements.

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Investigator's decision on behalf of the Ombudsman