Decision Date: 6 June 2024
Summary: Surrey delayed 5 months before responding to Mrs X’s request for an increase in care hours, unfairly recouped direct payment monies, which its own policy on the rate being offered had led to being unspent, and failed to investigate issues relating to the amount and timing of direct payments management by its contractor.
What happened
Mrs X received a direct payment to purchase support services for physical and mental health related needs.
She was a carer for her husband who had eligible needs and for one of her two school-age children.
In a May 2022 document the assessor reported Mrs X to be vulnerable and under significant pressure, that she was not coping looking after herself and struggling to manage the needs of her husband and child. The assessor reported Mrs X to be “…struggling with day-to-day household responsibilities, such as cleaning and tidying, grocery shopping and energy driving. Her family are reliant on her to do these tasks”.
The assessor concluded Mrs X to be at risk of physical exhaustion, deterioration in her mental health, and carer breakdown. The assessor reported that a “…package of care for support with all house-keeping, organising family life and correspondence needs to be put in place… with support to keep the house tidy, clean and day to day organisation, correspondence, driving to build physical and emotional strength while she focuses on her mental health recovery”.
She received 20 hours of support per week and received a direct payment of £135.00 per week to employ a personal assistant as part of that package.
In February 2023 thepersonal assistant gave notice to leave the role. She said this was because of the low hourly rate. Mrs X said that she was unable to source a replacement. The personal assistant left in the first week of March 2023. A reviewing officer asked a manager if Mrs X could use her surplus direct payment funds to increase the hourly rate for a personal assistant and wrote saying “…to confirm that you can use the DP surplus funds to employ a PA at the rate of £15 per hour. However, this is only time limited until 31/03/2023”.
The Council says Mrs X was offered the option of having her support provided by a care agency, and that she declined this offer. Mrs X refutes this, saying such an offer was never made.
Mrs X recruited a cleaner on an informal basis on 14 March 2023 and paid from the DP. No alternative parenting support was not found.
Mrs X continued sending emails to her social worker, but the officer had left.
Her concern about losing the support if the temporary increase was not continued was recorded.
In April 2023, Mrs X was hospitalised suffering from breathing issues, caused by an ongoing medical condition, exacerbated by dust. A new social worker said that a personal assistant needed to be recruited on a formal basis.
The social worker noted Mrs X had been using the excess money in her direct payment account to fund 26 hours of support per week which had not yet been agreed by the commissioning panel.
Mrs X says the Council delayed considering her request for increased support and that she lost out on additional support hours from which she would have benefited.
Mrs X thought that she had found a potential personal assistant who could transport the child to activities but when that did not work out she used some of the unspent direct payments on taxis. Mrs X said the Council was aware of this; the activities for the child were a response to an eligible need, and Mrs X was without support to transport the child. The Council disputed that it was aware direct payments were being used to fund transport for her child.
The records showed some confusion between adult and children’s services as to which service should fund the cost of transport.
In June 2023, the Council’s finance team asked for £1,954.49 unspent direct payment from the direct payment account, leaving a contingency amount of £548.26.
The Council returned £800 of the reclaimed monies back to Mrs X on 17 July 2023, because she had “invoices to pay”.
In July 2023, Mrs X asked if her cleaner could be appointed as a formal personal assistant. The Council said yes if the assistant passed the checks. That person supported Mrs X by transporting the child to activities from July 2023 onwards.
On 15 September 2023, the social worker sent Mrs X an email saying an increase in support hours had been agreed, but at a lower allocation than she had requested, 23.5 hours per week had been allocated. Mrs X replied asking for a written explanation as to why her request for 26.5 hours had been refused. The social worker replied saying she had requested an explanation from a senior manager.
Mrs X reported she had insufficient funds in her direct payment account to cover the payments made to her personal assistant because of the recoupment of unspent direct payment monies. The Council said the shortfall was a result of unauthorised spending on taxis. Mrs X then used monies from the next month’s direct payment to pay her personal assistant and she continued to purchase more hours of support than her budget allowed which resulted in her direct payment account running short of funds.
The records show Mrs X contacted the Council numerous times in September 2023 to report delays in receiving her direct payments, and that she was unable to pay her personal assistant on time. She said this was causing her, and her personal assistant considerable stress.
Despite the social worker’s efforts to discuss matters with the finance team, the issue continued.
Mrs X submitted a formal complaint to the Council in September 2023 and complained she had not been informed when a previous social worker left the Council.
The Council responded to the complaint in writing on 6 November 2023. The response focused on the logistics of the card payment system in use. It was made clear that the removed surplus funds would not be replaced but some effort would be made to increase the hours.
The Council agreed to increase Mrs X’s support hours to 26.5 on 10 November 2023, five months after her initial request. Mrs X told the social worker there were no funds in her direct payment account to cover her existing support hours, and this had happened every month since the Council had reclaimed unspent direct payments. The social worker told Mrs X she would contact the Council’s finance team to resolve the issue.
The November 2023 care plan confirmed the increase to 26.5 care hours per week and direct payment of £397.30 per week, starting 10 November 2023.
What was found –
Mrs X was faced with particularly challenging circumstances, which the Council was aware of. The Council was aware of the difficulty in recruiting personal assistants in the area Mrs X lived because of the low hourly rate. Because of the known difficulty of recruitment at a low rate, Mrs X was unable to source a formal personal assistant and was without any support for two weeks and she was admitted to hospital, possibly on account of the dust.
Mrs X was without support with transporting her child to activities, which the Council was aware of. It should have amended Mrs X’s support plan to reflect this and formalised a contingency allowing Mrs X an allowance for taxis.
Rate and recoupment issues
Whilst a temporary increase in rate may have attracted applicants to the role, any subsequent decrease would have only served to cause disruption, as a personal assistant would likely leave the role.
Mrs X was without a personal assistant resulted in direct payments accruing in the account, which the Council later recouped. Whilst the Council is entitled to recoup unspent payments, in this case, it seems somewhat unfair. The payments were unspent as a direct consequence of the Council’s own policy.
The Council could and should have used its discretion to allow Mrs X to keep the payments to purchase additional support when a replacement personal assistant had been recruited.
Late payment
The issue with direct payments reaching Mrs X’s account in time to pay her personal assistant appeared to begin after the Council recouped the unspent direct payments. I note the Council later returned £800 of the reclaimed funds to enable Mrs X to pay outstanding invoices.
The payments were handled by a third-party card company. The Council told Mrs X it had no control over the way the card company processed the payments. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them so it cannot say the actions of the card company were out of its control.
The Council is responsible for ensuring people receive direct payments on time, so personal assistants can be paid on time.
Amount in payment
The Council confirmed the monthly shortfall had been addressed “…and a backdated payment added of approximately £350 was made to address the consistent shortfall related to the increase in hours being agreed in September 2023 but not processed until Nov 23. The shortfall should have been investigated and remedied much sooner than it did. This has caused Mrs X unnecessary anxiety and uncertainty.
The Ombudsman concluded by stating that the Council had acknowledged a delay in agreeing an increase in Mrs X’s support hours and apologised but failed to acknowledge the impact on Mrs X at a time she was under significant stress, and she missed out on the additional support during the delay.
The Council also failed to explain why it initially refused the full amount of additional hours Mrs X requested.
Surrey has “…invested in a transformation plan to address:
- poor communication
- a need for staff development re DPs
- improved customer journeys”.
It said that it has learned from complaints and use the intelligence gathered to make necessary changes.
£1,160.63 of the recouped direct payments was to be reimbursed, (to be used at Mrs X discretion) and apologies were made.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
This report is important because it is actually illustrative of the following legal principles:
The budget needs to be sufficient to meet the needs; we are surprised the Ombudsman did not say more about the illegality of a budget that is demonstrably too low to attract staff to meet unmet needs.
Councils are obliged to address evidence of insufficiency of the budget if they want to contend that their position is rationally defensible.
Councils are obliged to act in a timely manner in relation to the urgency of the point being made.
Councils cannot underfund care so as to ensure that they can recoup the unspent money!
Councils’ arrangements with payment management companies are ultimately part of the direct payment system and thus something for which the council cannot delegate responsibility if choosing to delegate the function.
Reimbursement of what should have been provided earlier can sometimes be a sensible measure of compensation to settle an issue.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s report into Surrey County Council’s (23 013 193) conduct.
If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community when posted.
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