Summary: Mr X complains the Council failed to deal properly with his late wife’s direct payments, by taking too long to audit them and then asking her estate to repay nearly £1,700. The Council failed to produce a detailed care and support plan in 2022. This resulted in a lack of clarity over what Mrs X’s direct payments could be used for. The Council needs to apologise, reduce its claim on Mrs X’s estate, pay Mr X for the distress caused and ensure officers improve their working practices.

The complaint

1. The complainant, Mr X, complains the Council failed to deal properly with his late wife’s direct payments, by taking too long to audit them and then asking her estate to repay nearly £1,700.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have investigated the action of the Council. I have not investigated the actions of the NHS, as they fall within the remit of the Parliamentary and Health Service Ombudsman. This included the NHS’s decision not to accept expenditure from April 2023 when it had already started fully funding Mrs X’s care.

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How I considered this complaint

5. I have:
• considered the complaint and the documents provided by Mr X;
• discussed the complaint with Mr X;
• considered the comments and documents the Council has provided in response to my enquiries;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Mr X and the Council, for me to consider before making my final decision.

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What I found

What happened

6. Mrs X had dementia, which had a significant impact on her mental health. She had other health problems which affected her mobility.

2022

7. In April 2022 the Council updated Mrs X’s care and support plan. The document the Council has sent provided for a personal budget of £908.81 a week, including Mrs X’s contribution of £74.83. Mrs X used a pre-paid card to spend her personal budget, which the Council paid into a direct payment account.
8. After the Council sent the updated care and support plan to Mr X in May, he asked why it did not include his wife’s weekly “wellbeing payment”, which had been £55.45 in the previous plan. Mr X told the Council it had agreed his wife could buy/rent equipment when she went on holiday.
9. On 10 May the Council noted Mrs X’s personal budget would increase by £58.45 a week to £892.43, to provide for the wellbeing payment. Its records say it backdated the payment to 28 March.
10. On 17 May Mr X asked if they could use the wellbeing payment to pay for insurance when his wife went on a cruise, so she could access the onboard hospital. He noted the wellbeing payment had accrued in his wife’s direct payment account, as they had not been able to use it during the COVID-19 pandemic. The Council said they could not use the money to pay for insurance. But, it said they could use it to pay for as many hours as Mrs X needed during the day, not just the four hours it had previously mentioned, “plus any additional items [Mrs X] requires as part of her support”.
11. In June the Council increased Mrs X’s direct payments from £892.43 to £1,011.57 a week, from 9 May.
12. Mr & Mrs X sold their home in June 2022, as it was not suitable for her needs as a wheelchair user. They lived in temporary accommodation for 11 weeks, while their new home was built (an annex to their daughter’s home). During this time they bought a wheelchair accessible vehicle. Mr X gave the Council their new address and the proposed move to permanent accommodation.
13. On 22 June the Council told Mr X his wife’s personal budget already included £65.88 a week for “mobility and local facility access” and it had since added a further seven hours of support to her personal budget. It confirmed Mrs X’s contribution towards the costs of her care was £59.05 a week, not £78.43.
14. According to the Council’s records, officers were not clear what the welfare payments were for, but assumed it was accessing the community and “going for coffee” with Mrs X’s daughters.
15. On 1 July Mr X told the Council they had been using the welfare payments to support Mrs X when she went out for coffee with her daughters. He said they also used the money to hire equipment during their holiday and had been saving it for that purpose. The Council told Mr X his wife’s respite payments would increase to £62.40 a week from 1 April 2022. This was based on spreading the funding for six weeks of respite over the whole year (£540.38 x 6 = £3,242.16).
16. On 4 July Mr X asked the Council’s finance team if the respite money was the same as the money for mobility and community access. It told him to contact social services.
17. The Council’s financial assessment team told Mr X some of his wife’s allowances for disability related expenditure would need reviewing, as they were no longer living in the same home.
18. On 30 August the Council told Mr X his wife’s direct payments would increase to £1,015.52 a week from 1 April 2022.
19. In September Mr X asked for a face-to-face meeting to discuss the implications of their move to a new address for his wife’s financial assessment. They had recently moved to a newly built annex to their daughter’s home. The Council did not respond to this request.
20. During a telephone conversation on 22 September, Mr X said they did not have to provide invoices for the welfare payments and could spend them on whatever they wanted.

2023

21. Following an NHS assessment for Continuing Healthcare in 2022, the NHS agreed to fund 40% of Mrs X’s care package. This funding started from 1 January. During January the NHS reassessed Mrs X for Continuing Healthcare. It told the Council she would qualify for full Continuing Healthcare.
22. On 12 January, a Council officer assigned to work with Mrs X noted it was difficult to work out how her personal budget was being spent, as there was no detailed breakdown in her 2022 care and support plan.
23. Mr X told the Council they were thinking of going on another cruise, but only for a week. He also said after selling their home (in June 2022), they had bought a wheelchair accessible vehicle, so it was no longer necessary to hoist Mrs X when travelling by car.
24. The Council drafted a care and support plan for Mrs X. It sent the draft to Mr X in February. He said the respite/wellbeing allowance appeared to be missing. The plan provided to us by the Council says: “funding has been provided to pay for some aspects of facilitating a holiday”. It says Mrs X last went on holiday in 2022 with her husband and a personal assistant.
25. In February Mr X told the Council the wellbeing/respite money was to take his wife on holiday, or out into the community, but he understood there were certain things it must not be spent on.
26. By April the NHS had confirmed Mrs X was eligible for Continuing Healthcare and that it would backdate this to May 2022. This meant the NHS would fully fund Mrs X’s care and she would not have to contribute towards the cost of her care. The NHS had to refund the Council’s expenditure between May 2022 and March 2023. The NHS’s started paying its 100% funding into the direct payment account set up by the Council to cover expenditure from 1 April, until a new account was set up to manage the NHS funding. On 19 April the Council told Mr X, as the NHS was now paying his wife’s personal budget in full, the NHS would make the final decision on what happened to money in the account. It told him if there was an urgent need to pay someone, it could arrange this, but he needed to speak to the NHS.
27. The Council started auditing Mrs X’s use of her direct payments as part of the process of reclaiming its expenditure from the NHS.
28. On 23 July the Council told Mr X it was completing the audit of his wife’s direct payments and was consulting NHS colleagues about the expenditure they had agreed to fund from May 2022.
29. Mrs X died in October 2023.
30. The Council completed its audit of Mrs X’s direct payments in December. The audit identified £4,494.47 of inappropriate expenditure which needed repaying:
• £770 in undocumented cash withdrawals (which Mr X accepts)
• £492.99 on an air cushion for a wheelchair in July 2022
• £409.98 on a wheelchair and accessories in October 2022
• £2,272 on holiday accommodation for two personal assistant in April 2023
• £549.50 to rent a mobility scooter while on the cruise in April 2023
31. As Mrs X had overpaid her client contribution by £2,799.74, the Council said her estate needed to repay £1,694.73.

2024

32. Mr X complained to the Council in February 2024
33. When the Council replied to Mr X’s complaint in February, it said:
• Between May 2022 and March 2023, it had paid Mrs X £40,045.04 in direct payments.
• It had invoiced the NHS for £38,350.31 and Mrs X’s estate for £1,694.73, to recover this expenditure.
• It had liaised with the NHS to ensure all expenditure since May 2022 had been in line with its guidance and policies.
• They had failed to tell the Council about the sale of their home for £425,000 in June 2022. It believed Mrs X would have been responsible for funding her own care from that date, if the NHS had not agreed to fund her care from May 2022.

Is there evidence of fault by the Council which caused injustice?

34. Mrs X’s 2022 care and support plan did not identify the funding for respite. The Council increased Mrs X’s personal budget to include this money but did not update her care and support plan to make it clear what this money was for. It made changes to her personal budget but did to update her care and support plan to reflect them all. That was fault by the Council, as everyone should have an up-to-date care and support plan which sets out their personal budget and what it is to be used for. This resulted in a lack of clarity over what Mrs X could do with the respite (wellbeing) payments. The Council told Mr X they could not use the money to pay for insurance, but said it could be used to pay for care and any “additional items” Mrs X required as part of her support.
35. The Council needs to accept responsibility the fact that, due to the lack of clear guidance, Mr X used some of the money to buy equipment which the NHS subsequently refused to accept.
36. The Council was wrong to say Mr X had not told it about selling their home in June 2022. He told the Council they had moved in June 2022. In July 2022 the Council’s finance team told him it needed to review some of Mrs X’s disability related expenditure, because they were no longer living in the same property, but did not follow through with this. In September 2022 Mr X asked for a face-to-face meeting to discuss the implications of their move to a new home for Mrs X’s financial assessment. But the Council did not respond to this request. The Council needs to apologise to Mr X for the distress caused by falsely accusing him of concealing information from it.

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Agreed action

37. I recommended the Council:
• Within four weeks:
1. writes to Mr X apologising for the failure to produce a detailed care and support plan in 2022 and the resulting confusion this caused over the use of respite funding, and apologising for the distress caused by accusing him of concealing information about the sale of their home and failing to respond to his request to update his wife’s financial assessment to reflect the change.
2. reduces the invoice to Mrs X’s estate by £902.94.
3. pays Mr X £300 for the distress he has been caused.
• Within eight weeks reminds officers of the need to produce care and support plans which explain how personal budgets are to be spent and that they update the plans whenever changes are made.
38. The Council has agreed to do this. It should provide us with evidence it has complied with the above actions.

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Final decision

39. I have completed my investigation on the basis there has been fault by the Council causing injustice which requires a remedy. The Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman