Date of decision: 04 September 2025
Summary:
A man complained that Kirklees Council ended his disabled relative’s direct payments without following proper procedures, leaving uncertainty and distress. The Ombudsman found the Council had acted lawfully in ending the payments but failed in communication, co-ordination of care, and in assessing respite and day-centre needs.
What happened:
In late October 2023, a Council social worker assessed a man, Mr Z, who lived with relatives Mr and Mrs X and needed extensive support for mobility, personal care, and medication.
Mr X managed Mr Z’s direct payments but found them difficult due to his own declining health.
The social worker’s review noted no change to the man’s care plan of 132 hours per week plus 5 sleep-ins and 24 nights of respite per year.
In November 2023, Mr X completed a carer’s assessment in November 2023. This noted around 50% of the support was provided by paid carers with the rest provided by him and Mrs X. Mr X said he was no longer able to provide any personal care or manual handling. He said they needed sufficient care, support and respite to recover, mentally and physically.
At the same time, the Council contacted Mr X about missing bank statements needed to audit the direct payments. Mr X replied he would provide them via an accountant but asked for the Council to delay action. He said he would provide information, but he wanted to get the account reconciliation signed off by an accountant which would be paid from Mr Z’s direct payments. Mr X said there was a shortfall in direct payments for the 2023/24 year. Mr X had been sued by a former employee in 2021 for a shortfall in wages and paid the settlement from Mr Z’s direct payments as an exceptional employment cost. He asked the Council to stop setting him deadlines.
The Council warned that without the information, the direct payments would be terminated. In February 2024, having received no statements, the Council gave 28 days’ notice to end the direct payment agreement and said it would find a new provider.
Mr X asked for a reconsideration, arguing he had not breached the agreement and that there must be no interruption to care.
Mr X said Mr Z had no care plan funding or carer support from late March.
The Council selected a provider, Care Provider B, who, it said, would be willing to employ Mr Z’s current assistants. However, communication broke down between the Council and Mr X; Mr X said he refused to engage initially because he believed care hours were being cut.
By late March 2024, Care Provider B drafted a support plan for 245 weekly hours, which the Council approved temporarily. Mr Z’s shared NHS and Council funding continued after an April review meeting.
The Council rejected Mr X’s appeal against the termination of direct payments, citing failure to provide the requested evidence. Mr X was required by the Council’s Direct Payment conditions to ‘obtain, retain and produce to the Council upon request’ financial and employment information.
A Council review in December 2024 recorded that Mr Z wished to attend a day centre and that respite had lapsed, but no action was taken.
Mrs X continued to provide night care, and both carers were under strain. Mr X later complained to the Ombudsman.
What was found:
The Council was entitled to end the direct payment agreement after repeated failures to produce financial evidence but was at fault for poor communication with Mr Z and failing to ensure a co-ordinated transfer to commissioned care.
In ending the direct payments, there was no evidence the Council sought to speak directly with Mr Z to explain what was happening and why. Mr X was responsible for managing the direct payments on behalf of Mr Z but Mr Z was the person receiving the care and support. The records show Mr Z had capacity to make decisions about his day to day care needs. These failures caused distress and uncertainty.
When commissioning the care package the Council gave care provider B a copy of Mr Z’s care and support plan. But given Mr Z already had an established team of personal assistants and given the significant amount of support he required, care provider B needed more information to enable it to support Mr Z effectively. The lack of proper co-ordinated arrangements for the move from direct payments to commissioned care added to Mr Z’s distress.
The Council also failed properly to review Mr Z’s wish to attend a day centre and did not reassess respite needs for Mr and Mrs X, leaving unresolved uncertainty and potential unmet need.
Mrs X was, and still is, providing any additional support Mr Z requires as the second carer during the night time. The commissioned new care package does not specifically provide or address any specific need for respite; this was not addressed in the needs assessment produced in December 2024 and there is no evidence the Council had ever completed an updated carer’s assessment to explore this further.
There was no fault in the number of care hours or the Council’s handling of the national minimum wage uplift for the one year investigated since Mr X had not supplied required records.
The Council agreed to apologise and pay £500 to Mr Z for distress and uncertainty, apologise to Mr and Mrs X, review Mr Z’s needs assessment including day-centre provision, and carry out fresh carer assessments, backdating any respite entitlement to December 2024.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
The Ombudsman’s report correctly identifies fault in process but underplays the statutory implications under community care law.
Under the Care Act, communication failures and lapses in co-ordination when withdrawing or transferring direct payments can amount to a breach of the backstop responsibility the Council must re-take, if a direct payment ceases. The report confines fault to maladministration but misses the core point that section 18 duties are not suspended merely by ending a direct payment—the needs must be met, somehow, until lawful replacement arrangements are functioning.
The Ombudsman’s comment that failure “caused distress and uncertainty” stops short of acknowledging potential unlawful unmet need and risk to wellbeing, contrary to the principle that wellbeing under section 1 must be actively promoted rather than reactively repaired.
We think that the case law would support a finding that the termination of a direct payment engages human rights, albeit balanced against the management of public money, and other people’s rights and freedoms. That’s why we think that the Care Act Guidance annex on reclaims and debt recovery exhorts and requires such very great caution on the part of councils when seeking to recover money.
Public law principles require meaningful involvement, yet the record shows unilateral termination and reassignment without advocacy support for that decision, which was a change to the care plan. Where capacity is in question, as it likely was given the nature of Mr Z’s disabilities, the Mental Capacity Act imposed a procedural duty to provide advocacy support because of the cloud hanging over his natural supporters, which could have been seen as making the relatives ‘inappropriate’ because of the conflict arising from the history.
There is a virtual duty to provide an independent advocate if one’s relatives, who would normally be a source of informal participation support, are in material disagreement with the Council. No evidence of this being considered exists in the report; Mr Z got an advocate for his later ICB shared funding review, but not for the earlier decision.
Finally, community care case law confirms that when councils offer to commission new providers after terminating direct payments, they must document the objective suitability of those providers to meet identified needs. It is not just a question of transferring the staff, although that may well be the best way. In that situation, we do not think that TUPE applies because we think that the termination of a direct payment is not a relevant transfer of an undertaking; the purchaser is an entirely new purchaser.
The lack of such evidence in the handover process in relation to provision of merely an existing care plan—as well as the failure to ensure day‑centre access—suggests contravention of the reasonableness standards central to lawful care planning. Any operational decision to end a direct payment must be integrated with a concurrent review and continuity plan, with carers’ needs re-evaluated contemporaneously to prevent cumulative breach of both sections 18 and 20.
The investigator only considered the wage uplift issue for one year, on the footing that Mr X could have complained about failures from 2020 onwards at a much earlier point.
The investigator made a startling slip by characterising Mr Z’s care as funded equally by the Council and NHS through continuing health care (CHC) funding which is funding where a person is assessed as having a primary health need. The investigator means shared funding between the Council and the ICB; if Mr Z had CHC status the Council would not have been involved at all.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Kirklees Metropolitan Borough Council (24 016 885) report. 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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