Summary: Ms X complained about the Council’s response to her request for direct payments and related matters. We did not find the Council to be at fault. It responded to her requests for information, additional care and repayment appropriately.

The complaint

1. Ms X complains about the Council’s response to her request for direct payments. In particular, she says the Council:
1. provided inadequate advice and information about direct payments and failed to send her a hard copy of the agreement she was expected to sign;
2. failed to honour an agreement to backdate her direct payment to June 2023; and
3. failed to refund for care costs she incurred when her care package ended.
2. Ms X says the Council’s failure to meet her care and support needs for many months caused her significant distress and a decline in her overall well-being. She says she has lost trust in the Council, causing further distress.

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The Ombudsman’s role and powers

3. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have and have not investigated

5. I have investigated what happened up to May 2024, when Ms X brought her complaint to the Ombudsman. I have not investigated what happened more recently because this part of her complaint to us is premature. She must complain to the Council in the first instance.

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How I considered this complaint

6. I considered all the information provided by Ms X and the Council.
7. I considered the relevant law, guidance and Council policy.
8. Ms 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

9. 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.

Direct payments

10. 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.

Paying for care

11. 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)
12. 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. Councils have no power to assess couples according to their joint financial resources. A council must treat each person individually. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.

Disability related expenditure (DRE)

13. Councils can take disability-related benefit into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs it is not meeting. The Care and Support Statutory Guidance sets out a list of examples of such expenditure. It says any reasonable additional costs directly related to a person's disability should be included. What counts as DRE should not be limited to what is necessary for care and support. For example, above average heating costs should be considered.

What happened

14. 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.
15. Ms X has several health conditions, including autism and anxiety. In May 2023, the Council carried out an assessment of her care and support needs. This determined Ms X was eligible to receive four hours of support per week to help her with accessing the community and maintaining her home. The social worker suggested direct payments as a possible way arranging support. Ms X said she would give it some thought.
16. In the meantime, the Council provided care through an agency. This started in June 2023. The arrangement did not work out, for reasons not relevant to this decision statement.
17. In August 2023. Ms X asked the Council for a direct payment so she could arrange care herself.
18. Over the following months, Ms X had several conversations with several officers from the Council’s social work, direct payments and financial assessment teams about setting up the direct payment and her financial contribution.
19. It was not possible to set up the direct payment for several reasons that I have summarised below.

• Ms X did not return the signed agreement.
• Ms X says the Council was unclear about how the direct payment would work and did not answer her questions properly.
• Ms X said she needed more than four hours of support per week.
• Ms X disagreed with the financial contribution the Council said she had to pay towards the cost of her care.

20. The Council agreed to carry out a reassessment. It also agreed to increase of her weekly care to nine hours pending the outcome of the reassessment.
21. Ms X arranged for an agency to provide care in October 2023, before the direct payment was set up.
22. Over the following months, many attempts were made to complete the reassessment and financial assessment. Ms X said the information she was expected to provide was disproportionate and unfair.
23. Ms X had a face-to-face meeting with her new social worker in April 2024. Ms X strongly disagreed with the content of the resulting draft assessment and questions she was asked by the social worker. This led to a formal complaint about the Council’s handing of her case.
24. In response, the Council said:
1. Ms X failed to return the signed direct payment agreement and other relevant information relating to her financial assessment;
2. Ms X had the option of having a care package while these matters were resolved;
3. Ms X had failed to engage with the directs payment team on several occasions; and
4. it would back date her direct payments to April 2024, when she met with the social worker to carry out the reassessment.
25. Dissatisfied with this outcome, Ms X brought her complaint to the Ombudsman.

Analysis

26. I will consider Ms X’s separate areas of complaint below.

Setting up the direct payment

27. Ms X says the Council failed to properly advise her on how the direct payment would work in practice, including what she was allowed to spend the money on and whether she could use less money one week and more another. The case records show the Council provided her responses to all her questions. I appreciate they were not always the answers Ms X wanted to hear, but the Council gave responses in accordance with its direct payments policy. There was no fault with the advice given to Ms X about direct payments.
28. There was a slight delay in Ms X receiving the hard copy direct payment agreement in August 2023 but this this had no impact on the overall timeline and did not amount to fault.
29. In my view, the main obstacle in this in this case was not the lack of information about direct payments, but the outcome of the financial assessment and Ms X’s assessed contribution. She was assessed as having to pay £78 per week towards the cost of her care that she says she could not afford to pay. There was also a dispute about her DRE.
30. The Council acted appropriately by offering to meet with her to discuss the problem with a view to identifying a solution. In response to Ms X’s specific complaint about this matter, also offered to waive the first month’s client contribution, in order to move the case forward and start the direct payments.
31. Overall, I have seen evidence that the Council has made every reasonable effort to support Ms X to help her to set up a direct payment and receive care and support. It answered Mrs X’s specific questions, it considered all requests for more support hours, made staffing adjustments to suit Ms X’s specific requirements and arranged meetings in any way that is most comfortable to Ms X. Because of this, I am satisfied the Council was not at fault.

Failure to backdate direct payments

32. I have seen no evidence within the case records, or information provided by Ms X, that the Council agreed to provide direct payments, backdated to 2023. In the absence of such evidence, I do not find the Council to be at fault.

Failure to refund care costs

33. Ms X says the Council had an obligation to refund costs she has personally incurred on care since the agency stopped providing care in August 2023.
34. The records show Miss X arranged some care herself via an agency in October 2023. They are not clear about how long this continued, but it would appear to have been a short-term arrangement.
35. In response to her query about a refund for her care costs, Ms X was told she would need to provide receipts and repayment would be considered. This was a reasonable and fair offer and one the Ombudsman would not criticise. The Council was entitled to ensure public funds are used for their intended purpose and asking for receipts is an appropriate way of doing so.
36. The Council has told the Ombudsman that this offer remains open should Ms X wish to provide either receipts or contact details of the carer’s that provided her with care.
37. The Council was not at fault.

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Final decision

38. I have not found the Council to have acted with fault. On this basis, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman