Summary: Mr X complained about the Council’s failure to meet his care and support needs since 2020 and mismanagement of his direct payments since they were first made in 2016. This led to a large debt that Mr X cannot afford to repay and caused a significant decline in his mental health. We found the Council to be at fault. It failed to monitor the direct payment and address the surplus in his account. To remedy the injustice to Mr X, the Council has agreed to apologise, reduce the debt, and take action to improve its service.

The complaint

1. Mr X complains about the Council’s failure to meet his care and support needs since 2020.
2. He also complains about the Council’s failure to identify his inability to manage a direct payment since 2016. This led to Mr X accruing a large debt that he cannot afford to repay.
3. Mr X says he has suffered a mental breakdown as a direct result of the Council’s lack of support, threats of debt recovery action and mismanagement of his case for several years.
4. Mr X is represented by his friend, Mr T, in making this complaint.

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The Ombudsman’s role and powers

5. 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)
6. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating; or
• we cannot achieve the outcome someone wants; or
• there is no worthwhile outcome achievable by our investigation.
  (Local Government Act 1974, section 24A(6), as amended, section 34(B))

7. 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

8. Part of Mr X’s complaint relates to events that happened between 2016 and 2020. Mr X says he was not capable of managing a direct payment from the outset and this should not have been sanctioned by the Council in 2016. The law gives us wide discretion to decide what to investigate. I will not investigate this matter because so much time has passed that it would be difficult to find evidence of fault and therefore achieve a worthwhile outcome for Mr X. I have reviewed the care records and am satisfied Mr X was assessed by the Council as having capacity at this time, and the arrangement worked satisfactorily for five years. Although Mr X’s representative questions this capacity assessment, it would not be possible after so many years to be able to establish evidence that would support this assertion. I will not investigate, or recommend a remedy for, any debt that accrued prior to March 2020.
9. I have investigated what happened from March 2020 onwards. This is when Mr X did not receive care due to Covid 19 and part of the debt started to accrue. I have decided to exercise my discretion to investigate this period because I am satisfied, due to Mr X’s brain injury, it was not possible for him to raise his complaint earlier. This only became possible when he was supported to do so by his representative (Mr T), which is a much more recent development. There is also sufficient documentary evidence to enable me to reach robust findings.
10. I have referred to earlier events for contextual reasons only.

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How I considered this complaint

11. I considered all the information provided by Mr T and the Council.
12. I considered the relevant law, guidance and Council policy.
13. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Care and support plans

14. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. Personal budgets
15. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.

Direct payments

16. Direct payments are monetary payments made to individuals who ask for one to meet some or all their eligible care and support needs. They provide independence, choice, and control by enabling people to commission their own care and support to meet their eligible needs.

Charging

17. 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 places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the 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)
18. Where a council has decided to charge for care, 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.

Direct payment agreement

19. The Council’s standard direct payment agreement contains the following obligations.

• The Council will end the agreement and cease any direct payments if it becomes aware that the assessed eligible needs are not being met. The Council is entitled to recover any direct payments not used for their intended purpose.
• The Council is entitled to recoup any direct payments not used for their intended purpose.
• Reviews will be carried out, usually on an annual basis.

What happened

20. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “Analysis” section of this decision statement.

Contextual information

21. Mr X has care and support needs. He had a serious accident in his 20’s and has suffered long term ill health issues ever since as a result. He struggles to retain and understand some information due to his brain injury.
22. In 2015, he was assessed by the Council as being able to arrange his own support via a direct payment. He did this by employing a personal assistant. At the time of the events I have investigated, this was Mr D.
23. In June 2019, the Council identified some unauthorised payments from his direct payment account. Mr X was told verbally that the Council accepted this was because of a misunderstanding by Mr X as to what the money could be used for. He was offered the use of a managed account but this was refused by Mr X because he said he could manage once he was advised about the rules. Mr X says he was not informed of what the Council intended to do about repayments, despite enquiring on several occasions.

Events I have investigated

24. In 2020, Mr X was forced to self-isolate because he was vulnerable to infection from Covid 19. He told Mr D not to attend. Mr X says he struggled to manage on his own and his quality of life deteriorated. He continued to pay Mr D and received furlough payments from the government as well as the monthly direct payment.
25. In December 2020, the Council carried out a reassessment. As a result, his care package was reduced. Mr X says this decision, in part, led to the breakdown of his relationship with Mr D, who he made redundant in February 2021. Mr X says that Mr D had become unreliable due to personal issues and this was another reason why the arrangement broke down.
26. Despite the Council being aware that Mr D was no longer supporting Mr X, it continued to pay the direct payment until July 2021.
27. Mr X told the Council he had accrued £7000 in his direct payment account. He explained this had affected his credit rating. He also told the Council he was concerned the account was due to be closed because the bank no longer supported that type of account.
28. Overwhelmed by his lack of support, worry about debt and increased client contribution payments that he could not afford, and failure to provide any advice on how to navigate this problems, Mr X told the Council he no longer wanted a care package. Despite this, the Council continued make payments into his direct payment account.
29. In September 2021, the Council referred Mr X to a voluntary sector agency (the Agency) for support with his finances and day to day affairs. Mr X says he was in debt to several other creditors who were pressing him for payments he could not afford.
30. In October 2021, the Council provided Mr X with its bank details and asked him to return the surplus direct payment. In response, Mr X told the Council he was not prepared to return the money until he received a full explanation about what was owed and why. This is because he had received confusing information about his client contribution and no information about the 2019 overspend.
31. The Council responded with this information in February 2022. He was told he needed to repay £13,000.
32. In April 2022, Mr X was told he owed the Council £15,000.
33. Mr X responded in May 2022. He explained the Agency had advised him to use the money in his direct payment account to pay off a creditor. Because of his dire financial situation, Mr X felt he had no choice but to do so. He no longer had the money to repay the Council and was heavily in debt.
34. In September 2022, Mr X was offered a new care needs assessment, but this was refused by Mrs X. He told the Council, "I’ll fancy my chances on my own cause I’m too mentally tired of waiting on decisions. Please let’s close my case”.
35. The Council advised Mr X he could pay the money back by 12 monthly instalments of £1,300. Mr X told the Council this is completely unaffordable. The Council asked Mr X what he could afford. Mr X did not provide a figure, but said he was getting help with his debts.
36. In March 2023, Mr T became aware of his friend’s situation and agreed to help him resolve the matter on behalf of Mr X. Mr T confirmed he needs a comprehensive explanation about how such a large debt was allowed to build up, when Mr X is clearly a vulnerable person. He also wanted the Council to urgently reassess Mr X’s care needs and provide him with a support.
37. A meeting between Mr T and the Council was held in October 2023. It was agreed the Council would carry out an assessment. This led to a new support plan being issued in November 2023.
38. Mr X made a formal complaint to the Council in October 2023. He said Mr X did not have the cognitive ability to manage a direct payment. He was extremely vulnerable, and the Council had essentially “set him up to fail”. He also complained about the Council’s ongoing failure to meet his care and support needs,

The Council’s position

39. In response to both Mr X’s complaint and the Ombudsman’s enquiries, the Council’s position is summarised below.

• Mr X had mental capacity to manage a direct payment throughout. This was regularly reviewed during assessments and reviews.
• Mr X admitted in writing to misspending public funds and agreed to set up a repayment plan. This offer was then retracted following the involvement of Mr T.
• The Council continued to offer care and support planning throughout.
• Mr X refused to carry out a financial assessment in July 2021.
• Mr X agreed to a small reduction in his care package in December 2020 to allow compliance with employment legislation. Instead Mr X chose to terminate Mr D’s contract because he could not afford the client contribution of £27 (as assessed in 2018).
• No support is currently in place.
• Mr X refused a managed account in December 2020.

Analysis

40. Both statutory guidance and the Council’s own policy outline the Council’s duties in supporting, monitoring and having oversight of Mr X’s use of direct payments. In summary, we expect councils to carry out regular reviews, not to allow large surpluses to accrue and cancel direct payments if the client cannot manage them. If so, an alternative should be offered so support needs do not go unmet. We also expect the recipients to advise the council if there is a problem and use public funds to meet their assesses care needs only. In this context, I will consider Mr X’s two main areas of complaint.

The direct payment

41. The Council identified Mr X had, albeit in good faith, mismanaged his direct payment account in 2019. Although this does not form part of my investigation, this is significant because it demonstrates that Mr X had difficulty understanding the scheme and a debt was already registered to his account of over £1000. The notes from the direct payment review record the Council had concerns about Mr X’s ability to manage the scheme. The evidence also shows the Council did not tell Mr X whether he had to repay the money.
42. Neither Mr X nor the Council dispute the care arrangements themselves largely worked satisfactorily up to March 2020. There are several emails between Mr X and his social worker where he tells her he is happy with Mr D and the flexibility offered by direct payments were of real benefit to him. This came to an end in March 2020 when the Covid 19 restrictions were put in force. Due to Mr X’s health vulnerability, he followed government advice and told Mr D to stop coming. I am satisfied Mr X would not have accepted any alternative care that could have been offered by the Council due to the risk of infection. This is clear from the emails I have read on this subject. Mr X received furlough money to retain Mr D until it was safe for him to return to work. I understand Mr D was paid in full by Mr X for the duration of his enforced absence and the Council continued to pay Mr X his direct payment.
43. It is during this period of time that most of the debt accrued. Mr X was receiving both furlough and direct payments and this was more than he paid Mr D.
44. The case records show that between March 2020 (when there was already a surplus of £2000 in his account) and July 2021, the balance had increased to £12,500. Mr X contacted the Council regularly during this time to advise the balance was increasing and he wanted the Council to take the money back. It is clear from his emails that Mr X suffered significant distress because “doing the right thing” was important to him. He suffered further distress and confusion when he was told his client contribution would increase from £27 to £41 per week in December 2020.
45. The Council took almost no action to address the problem throughout 2020. It is likely that was, in part, due to disruption caused by Covid 19. From the records I have seen, the only contact with Mr X about his direct payment was a request for his bank statements and a review in August 2020. It also suggested Mr X may benefit from a managed bank account in December 2020.
46. No meaningful action took place until January 2021. In response to a desperate email from Mr X about the impact the large balance was having on his other debts/benefits, Mr X was told to repay the money and it would provide him information about how to do this. It failed to do so. I consider this omission to be significant in this case. The records show Mr X was not provided with this information until October 2021.
47. In summary, it took the Council approximately 18 months to provide Mr X with the method to refund the surplus. This delay was fault and had significant consequences. This is because, by the time Mr X had the bank details, his own financial situation had spiralled out of control. It is also clear from his emails that he had lost his trust and confidence in the Council because:

• his client contribution was unexpectedly doubled in December 2024. I have seen no evidence this was properly explained to Mr X;
• he had waited since 2019 for the Council to tell his what would be done about his previous unauthorized overspend; and
• his direct payment account had not been reviewed since June 2019.

48. The Council has not explained why it continued to pay Mr X a direct payment when it was aware he was not using the money to buy support when Mr D was made redundant. Direct payments continued to be paid into his account between January 2021 and July 2021. There is no evidence the Council took any action to address this.
49. The Council was at fault for failing to properly monitor and audit Mr X’s management of direct payments from March 2020.
50. As explained above, had the Council had appropriate systems in place to manage and monitor Mr X’s direct payment account it would have prevented him using the funds to pay off other debts. Because of this fault I do not consider it fair to ask Mr X to repay the full amount of the current invoice.
51. Although Mr X did not use the direct payments for their intended purpose, he is clearly a very vulnerable person who should have had more support in this area. Mr X accepts he should not have taken the action he did. In the circumstances, I consider it appropriate for the invoice to be reduced by a half and for the other half to be repaid by affordable monthly repayments.

Care and support

52. Mr X has been without a care and support since February 2021 when Mr D left his employment. Since this time, the Council has carried out several reviews, all of which determined he had eligible care and support needs. I have seen evidence that on several occasions, the Council has offered to arrange for an agency to provide care. In my assessment, his has been rejected by Mr X for two main reasons.

• An agency could not provide Mr X with the flexibility he needed. For example, a care agency would only be able to attend at times in the day that were not suitable for Mr X. The Council was understandably unwilling to allow Mr X to receive another direct payment until the outstanding debt was addressed and his ability to manage the arrangement in future was assessed.
• His relationship with the Council had effectively broken down because of the direct payment issue. Mr X has made it clear his lack of trust in the Council has made it too difficult for him to have a constructive conversation with the Council about his care needs.

53. In my view, it is impossible consider the care and support issue in isolation. The case records clearly evidence the Council trying many times to offer support and this being rejected My Mr X, for entirely understandable reasons.
54. Overall, I am satisfied, there was no fault by the Council here. I am satisfied, had Mr X been willing to accept a standard care package, it would have been available to him.
55. That being said, it is clear to me that Mr X would benefit from help in the future. I hope my findings and recommendations in this case will provide the basis for a fresh start for both parties to be able to discuss when care options are available for Mr X in future.

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Agreed action

56. Within one month of the final decision the Council, the Council has agreed to take the following action.

• Apologise in writing to Mr X for the faults I have identified in this decision statement.
• Revise the debt owed to the Council by Mr X by 50% to remedy the distress caused by Council’s lack of support and inadequate monitoring of his direct payment account. It also recognises the situation in which the debt was allowed to occur was entirely avoidable, had the Council taken appropriate action when it should have done.
• Contact Mr X to arrange a repayment plan for the remaining 50%. If Mr X is unhappy with the repayment plan, it is open for him to make a complaint to the Council.

57. Within three months of the final decision the Council should carry out a review of how it supports, monitors and audits recipients of direct payments. This is to ensure all current and future recipients of direct payments are adequately monitored and audited in line with statutory guidance and to ensure similar matters such as this do not occur in the future. The resulting report should be considered by the appropriate Council committee.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. I have found the Council to be at fault and the Council has agreed to take action to the remedy the injustice to Mr X and improve its service.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman