Decision Date: 17 January 2025
Summary
Ms X complained to the Ombudsman about not receiving enough information on direct payments, alongside disagreeing with the financial contributions she was told she would have to pay towards her care costs. She was not happy with the initial assessment or the budget that was allocated. Additionally, she wanted the Council to refund care costs, but was told she would have to provide receipts.
What happened –
Ms X had a diagnosis of autism and anxiety, among other health conditions. In May 2023, her care and support needs were assessed by the Council. As a result, Ms X was found to be eligible for four hours of support per week to aid in accessing the community and maintaining her home. Direct payments were suggested by the social worker, and Ms X said she would think about it.
Initially, the Council provided her care through an agency, which began in June 2023. The arrangement was unsuccessful.
In August 2023, Ms X asked the Council for direct payments in order to arrange care for herself. The service she had been receiving stopped at that point [although the report does not make it clear how that cessation came about].
Over the next months, Ms X had conversations with officers from the Council’s social work, direct payments and financial assessment teams concerning the setting up of direct payments and her contributions arrangements.
Direct payments were not ever set up because:
- Ms X did not return the signed agreement.
- Ms X said the Council was unclear about how the direct payment would work and did not answer her questions properly.
- Ms X felt she needed more than four hours of support per week.
- Ms X disagreed with the financial contribution the Council had told her to pay towards the cost of her care.
The Council agreed to carry out a reassessment, and in the interim it agreed to increase her weekly care to nine hours pending the outcome of the reassessment. [The report does not make clear what Ms X’s response was to that offer].
In October 2023, Ms X arranged for a separate agency to provide care, before the direct payments were set up. She terminated the visits of the other commissioned agency.
Over the coming months, the Council attempted to complete the reassessment and financial assessment.
This time around, Ms X said the information she was expected to provide was disproportionate and unfair. [As she had already undergone a prior assessment, she may have been reluctant to provide information for the financial assessment.]
In April 2024, Ms X had an in-person meeting with her new social worker. She expressed strong disapproval with the content of the resulting draft assessment and questions asked by the social worker.
This resulted in a formal complaint about the Council’s handling of her case.
The Council stated in its response that:
- Ms X failed to return the signed direct payment agreement and provide other relevant information relating to her financial assessment.
- She had the option to avail herself of a care package while the matters were being resolved.
- She had failed to engage with the direct payments team on several occasions.
- It would backdate any direct payments due to April 2024, when she had met with the social worker for the reassessment.
Ms X then brought her complaint to the Ombudsman.
What was found
Setting up the direct payments
The case records showed that the Council provided her with responses to all her questions. The Ombudsman acknowledged that the answers were not what Ms X wanted to hear, but found that they were given in accordance with its direct payments policy. Thus, no fault was found in the advice given to Ms X regarding direct payments.
Despite there being a slight delay in Ms X receiving the hard copy of the direct payments agreement in August 2023, it was found to have had no impact on the overall timeline and did not amount to fault.
In the Ombudsman’s view, the main obstacle to implementation had been the outcome of the financial assessment and the financial contribution levied as a result.
Her contribution, as calculated from the assessment, was £78 per week towards the cost of her care. She stated that she could not afford this.
There was also a dispute with her Disability Related Expenditure. [The report does not touch on this, but it may be relevant to the breakdown in the relationship between Ms X and the Council.]
The Council was found to have acted appropriately by offering to meet with her to discuss the problem to find a solution. In response to Ms X’s specific complaint about this matter, it offered to waive the first month’s client contribution, to move the case forward and start the direct payments.
Overall, the Council was found to have made a reasonable effort to support Ms X to set up direct payments and receive care and support. It answered her questions, considered all requests for more support hours, made staffing adjustments to suit Ms X’s specific requirements and arranged meetings in a way that was comfortable for Ms X. Therefore, the Ombudsman was satisfied that the Council was not at fault.
Failure to backdate direct payments
There was no evidence within the case records, or information provided by Ms X, of the Council’s supposed agreement to provide direct payments backdated to 2023, as she had asserted. Due to the absence of such evidence, the Council was not found to be at fault.
Failure to refund care costs
Ms X said the Council was obligated to refund costs she had personally incurred on care since the commissioned agency ceased to provide care in August 2023.
The records show that in October 2023, Ms X did arrange care for herself via an agency. This appeared to have been a short term arrangement. [The report does not say how short or what sum of money was involved].
In response to her query about refunding her care costs, Ms X was told she would need to provide receipts so that repayment could be considered. The Ombudsman saw this as a reasonable and fair offer, to ensure that public funds are used for their intended purposes.
The Council informed the Ombudsman that this offer remained open to Ms X. To avail of it she would need to provide receipts or contact details of the carer that facilitated her care.
The Council was not at fault for this stance.
Overall, the Council was not found to have acted with fault, so the complaint was not upheld.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
The Ombudsman’s investigator does not seem to have discerned any breach of the Care Act.
We are not so sure, in fact. We can’t tell from what the investigator has said about the council’s policy whether or not it was in accordance with the law, and that is the test that the Ombudsman must use.
- 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.
With regard to the charging assessment, it is Ombudsman’s standard practice to expect an affordability review if someone says that they cannot afford to pay. This is not what happened here.
We cannot see for sure that the commissioned service was not STOPPED, and we think it was, although we don’t know who by. We can’t imagine Ms X paying out of her personal money for something that would only have been necessary if the commissioned service HAD stopped. If it had stopped, she had unmet eligible assessed needs on record, and there was thus service failure, in our minds.
Clearly, if someone wants restitution (a cause of action in terms of the law which is all about private expenditure when there has been a breach of duty), evidence of that expenditure must be satisfactory.
Not having any receipts would have made it difficult for Ms X to win a case in a civil court as an alternative to complaining, so the outcome is not surprising and we make no criticism of that.
But given the lack of detail in the report, which was not a refusal to investigate but a rejection of the complaint itself, it is impossible to tell what was really going on with regard to the hiatus in services.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Westminster City Council (24 002 126) report.
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