Decision Date: 16 October 2024
Summary
Mr Y complained about the Council’s management of his brother’s (Mr Y) care package. The Council failed to share a review outcome with Mr Y’s family promptly or warn them before recouping funds from Mr Y’s direct payment account, causing distress and uncertainty.
What happened
Mr Y is an adult with multiple health issues, including learning difficulties and epilepsy, depending on support from others to meet his daily needs. His main carer is his father, Mr Z. Mr Y and Mr Z also received help from Mr X and his wife, Mrs X.
Since at least 2007, Mr Y had been receiving direct payments (DPs) held by Mr Z for arranging the care he needs.
In late June 2023, the Council visited Mr Y to review his care and support plan. Mr Z and Mr & Mrs X were present.
During the review, the Council found that Mr Y had not attended one of the day centres for which he was receiving funding. As a result, the Council proposed removing this day centre and its associated transport funding from his care package. At the same time, the Council also suggested increasing Mr Y’s attendance at another day centre from two days to five days. This was aimed at better meeting Mr Y’s needs and providing more respite for Mr Z.
Until June 2023, the Council had provided Mr Y’s family with funding for 40 nights of respite away from home per year, which was intended to enable Mr Z to visit family outside the area of the Council and act as a break from his caring responsibilities.
According to the Council’s records, Mr Z refused a carer’s assessment. Instead, through Mr Y’s own package of care, the Council appeared to provide respite to Mr Z as Mr Y’s primary carer.
During the June 2023 review, the Council noted that Mr Z had not used the respite funding due to his own ill health and age. As a result, the Council decided to remove this element of funding from Mr Y’s care package. Instead, it offered to provide respite support for Mr Z on an ad hoc basis, as requested by the family.
The Council then discovered that a significant amount of money had accumulated in Mr Y’s direct payment account. In October 2023, the Council removed these excess funds.
In November 2023, Mr X contacted the Council to raise concerns about its sudden removal of approximately £11,500 worth of funds from Mr Y’s direct payment account without warning.
[The report does not mention what the funds were supposed to be used for, but it can be inferred that they could have been for the respite that Mr Y was not using or for the day centre he was not using.]
He explained that the money was urgently needed to pay tax and pension payments for Mr Y’s Personal Assistants. Mr X also shared that Mrs X, who had largely managed Mr Y’s payments, had recently passed away after a serious illness.
Mr X raised concerns about the reduced care package again shortly after Mrs X passed away in November 2023. In response, the Council increased Mr. Y’s hours of care from 23 to 30 hours per week and returned some of the funds to Mr Y’s account to cover the tax bill.
The Council then arranged another meeting with Mr Y and his family in late January 2024 and shared the care package reassessment with them in late March 2024. The Council then determined that Mr Y needed funding for 27.5 hours of support per week and that it would manage his direct payment account going forward.
In May 2024, the Council assumed management of Mr Y’s direct payment account from his family. [It is unclear from the facts whether this was disputed or consensual].
Mr X complained about the Council’s handling of Mr Y’s care. He believed the Council:
- Unreasonably and unjustifiably reduced support hours provided to Mr Y [It is not explicitly stated whether these were the day care hours (which appear to have increased) or the respite hours (which appear to be covered by another aspect of the complaint.]
- Removed a significant amount of money from Mr Y’s direct payment account without notice, leaving the family unable to pay outstanding invoices.
- Delayed the review of its decision after an appeal was made regarding the reduction in Mr Y’s care package.
- Eliminated all respite funding for Mr Y’s primary carer, Mr Z, without any prior discussion or warning.
What was found
Mr X complained that the Council reduced Mr Y’s care package despite his needs remaining the same. He believed the Council failed to consider medical professionals’ advice about the level of support Mr Y still required.
The Council’s decision to reduce Mr Y’s care package did not seem to the investigator to be based on any belief that his needs had changed. Instead, it reduced the weekly support hours after discovering that some services it was funding were not being used and had never been accessed. Based on the evidence reviewed by the LGSCO, the Council’s decision to reduce the support hours appeared reasonable and procedurally sound. Therefore, the LGSCO found no grounds to question the merits of the Council’s decision.
However, the Council was at fault for not sharing its proposed changes to Mr Y’s care and support package after the June 2023 review. The Council had not provided evidence showing it informed Mr Y’s family about the reduction in weekly care hours.
This failure denied Mr Y’s family the chance to challenge the proposed changes before they were implemented. By not taking reasonable steps to agree on the revisions to Mr Y’s care package, the Council acted against statutory guidance. This caused unnecessary distress to Mr Y’s family, which the Council should address. However, the impact on Mr Y himself appeared minimal, as the reduction involved removing funding for a service he had never used.
The Council’s case records did not show that the separate large accumulation of funds in Mr Y’s direct payment account with his family was ever discussed during the care plan review in June 2023. There is no evidence to show the Council alerted Mr Y’s family that it would be recouping the excess funds before taking this action.
The LGSCO found that the Council acted contrary to its direct payment agreement in Mr Y’s case. This agreement states the Council should have given Mr Y (or his carer) a week’s notice before decreasing the amount of direct payment.
The removal of funds from Mr Y’s direct payment account without warning caused his family significant distress and uncertainty. This occurred at a time when Mr Y and his family were already facing challenges due to Mrs X’s illness and her subsequent death. Mr Z and Mr X were unnecessarily and avoidably worried about paying outstanding invoices for Mr Y.
The LGSCO acknowledged that the Council was entitled to recover any excess unused funds from Mr Y’s direct payment account. However, the Council should have warned his family before doing so.
Based on the evidence provided by the Council, Mr X raised concerns about the proposed reduction in Mr Y’s care hours shortly after the June 2023 review. However, it appeared the Council did not record Mr X’s concerns as a formal step such as a request for an internal review, complaint or any other process. This may have been because the Council failed to share a copy of its review with Mr. Y’s family, as should have been done.
When Mr X raised concerns about the level of support Mr Y was receiving, after Mrs X’s death, the Council acted promptly to review his care package. Therefore, the LGSCO found no evidence of fault by the Council regarding this aspect of the complaint.
The offer to provide respite to Mr Z and the family on an ad hoc basis meant that the LGSCO was not convinced that it was fault to remove the annual respite funding. The Council did not withdraw respite support entirely. The Council instead committed to offering support to Mr Z as and when he needed it. The LGSCO concluded that this approach was reasonable.
The Council agreed to issue a written apology to Mr Y’s family for the distress and uncertainty caused by the Council’s failure to share the review outcome of Mr Y’s care package in June 2023 and the removal of funds from Mr Y’s direct payment account without notice.
The Council has also agreed to provide evidence to the LGSCO within 3 months that it had sent a reminder to all relevant staff of the following:
- The importance of promptly sharing details of care packages with service users and their carers or family
- The requirement to provide service users and their carers or family with at least one week’s notice before removing funds from their direct payment account
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
Chapter 13 of the Statutory Guidance requires (because s27 of the Care Act makes it a duty) that when revising the care and support plan councils must involve the person, their carer and any other persons the adult may want involved, and their advocate where the person qualifies for one. Councils must take all reasonable steps to agree the revision. The revision should wherever possible follow the process used in the assessment and care planning stages.
No reduction in weekly care was actually mentioned in the factual background. If this had been money for 2 days of daycare that was unused, when the money was taken back, funding for 3 days a week at another day care centre appears to have been increased, and that could only have been for the future.
In this case, the recoupment appears to have been a retrospective reduction, for money not needed after all, and whilst there was not much due process or compliance with the direct payment agreement, the fact of it having been discussed that it was not being and had not been spent was ‘good enough’ in our view.
The recoupment for the unused day care and the unused respite was not wrong in principle, but was implemented without due process, because a recoupment IS a reduction with regard to the prior allocation of funding needed to discharge the statutory duty.
This means that the Council was still in breach of the Care Act and the Guidance, in a technical sense. We don’t think councils tend to give notice before recouping unspent funds, but it would be good if they did, so that people have a chance to say what it has been earmarked for.
The Brent Direct Payment agreement also says the Council will give the Service User one weeks’ notice before decreasing the amount of direct payment, which may result in the Council clawing back money already paid. The implication though, is that that would be for the present or the future, we think; not for recouping monies that have accumulated since the distant past.
The other provisions in the DP agreement referred to recovery of ‘overpayment’ arising from a previous period, but that does not sound as if it would be a recoupment that would leave someone without the funds needed to pay for care that had actually been incurred.
We would have liked to see the terms of the Direct Payment agreement because the LGSCO has been involved in several complaints involving Leicestershire Council about failure to provide for 4 weeks’ notice of any reduction in care funding through a direct payment, whereas here the requirement was a minimum of one week for a recoupment.
In so far as a recoupment is an effective reduction, we think that this is inconsistent, and we are aware that there are no rules or guidance about this aspect of direct payments practice, or indeed, any requirement for a formal written agreement between holder and Council. It seems to us that engagement and a rationale is the minimum that public law principles would call for, for either a recoupment or a reduction for the future, to be lawful.
The Council was also entitled to regain management of Mr Y’s direct payment account, but it would have been helpful if the Council had explained its reasons for doing so to Mr Y’s family. However, this issue does not seem to feature in the scope of the complaint. We are surprised at the light touch given to the reported termination of the direct payment without reasons. It is the most elementary aspect of public law principles that public bodies’ decisions having a significant impact on a person’s life will not be taken without the giving of reasons, so that there is some prospect of transparency and accountability for the public sector.
The ending of choice and control over how one’s needs are met represents a huge change in a person’s life, especially if the person has learning disabilities but was still regarded as able to understand the responsibility attached to being the holder of a direct payment in his own name. We are all left in the dark as to whether the termination was asked for, consensual or disputed!
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s London Borough of Brent (23 015 299) report.
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