Summary: Mr X complains the Council did not advise him about care charges towards his mother’s care costs paid via a direct payment. We find there was fault by the Council as it gave the wrong information about amounts it would pay as a direct payment. However, we do not consider this caused Mrs X or Mr X injustice.

The complaint

1. The complainant whom I shall call Mr X, complains the Council told him in a direct payment contract it would pay £385 per week for his mother Mrs X’s care, but this was wrong. It paid £195 per week instead. He also complains
• the Council did not tell him about care charges which Mrs X must pay.
• he asked for more care to support Mrs X, but the Council has not arranged it.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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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How I considered this complaint

4. I have discussed the complaint with Mr X and considered the complaint and the information he provided. I made enquiries of the Council and considered the comments and documents it provided. I have discussed the complaint with Council officers. Mr 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

Legislation and guidance: charging for care and direct payments

5. 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).
6. 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.
7. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.
8. The gateway to receiving a direct payment must always be through the request from the person. Councils must not force someone to take a direct payment against their will. They should not place someone in a situation where a direct payment is the only way they can get personalised care and support.
9. Councils must tell people during the care planning stage which of their needs direct payments could meet. However, councils must consider requests for direct payments made at any time and have clear and quick procedures in place to respond to them.
10. After considering the suitability of the person requesting direct payments against the conditions in the Care Act 2014, the council must decide whether to provide a direct payment. In all cases, the council should consider the request as quickly as possible.

What happened

11. Mr X had obtained lasting power of attorney jointly with his daughter Miss X, regarding his mother’s property and finance.
12. In early 2022 following a stay in a residential care home Mrs X returned to her own home.
13. The Council carried out a care and support assessment of Mrs X. It considered that Mrs X required 24 hour care and support to meet her needs. This could be provided in a residential care home. However, Mr X and Miss X did not want Mrs X to go into a home. They felt she needed to live in her own home.
14. The Council agreed a package of care to support Mrs X at home in agreement with Mr X. The Council said it would make direct payments for 21 hours of care per week. Mr X agreed that the family would provide the remainder of the care.
15. In March 2022 Mr X signed a completed financial assessment form on his mother’s behalf. This form enabled the Council to calculate Mrs X’s contribution to the care charges based on her income and capital.
16. On 16 March 2022 the Council wrote to Mr X and advised that based on Mrs X’s financial circumstances her maximum weekly charge was £187.32 for non-residential care services. The Council said it would write to Mr X again once the package of care had been authorised. Mr X says he did not receive this letter.
17. On 17 March 2022 Miss X signed a direct payment agreement with the Council. This stated that the Council would pay Mrs X £387.35 per week as a direct payment. This would be paid into the direct payment bank account every two weeks. The notes in the letter said that:
• “if the person has to pay something towards the direct payment (their calculated charge) under the council’s fairer charging policy, this will be taken away from the direct payment before you get it.
• If they have to pay something towards the direct payments the amount they have been assessed to pay should be paid onto your direct payment bank account every week. This should be every week unless otherwise agreed, so that it contributes to the cost of their support set out in support plan.”
18. Mrs X’s care package started on 24 March 2022. In April the Council started paying £390 each fortnight to Mrs X’s direct payment account.
19. Mr X says that he found it difficult to get carers and so he covered the first 4 – 5 months himself. He then found reliable carers. When he looked at the direct payment account, he saw payments of around £300 from the Council. But he says he did not realise the payments were made fortnightly. He thought the payment was weekly.
20. On 21 April 2022 the Council wrote to Mr X confirming the care charges were £187.32 per week but this would increase to £191 per week from 11 April 2022. The Council also stated in the letter that, “As you receive a direct payment, the amount paid into your bank account will be net of the care charge. Please remember to pay your care charge into your Personal Budget bank account.” Mr X says he did not receive this letter.
21. In June 2022 the Council wrote to Mr X regarding the information it needed to audit the direct payments. This included the bank statements for the direct payment account showing care charges paid in by Mrs X and payments for care provider. It appears Mr X did not reply.
22. In August 2022 the Council says it became apparent that Mr X was not paying the assessed weekly care charge into the direct payment account. The Council’s social worker noted a discussion with Mr X. She asked him why he had not paid. Mr X said that he was providing 16 hours of care a day himself and was paying for five hours a day. He said he could not afford to pay the Council for care charges as well. The social worker explained that the Council had completed a financial assessment to calculate what Mrs X could afford.
23. Mr X said the Council’s assessment did not take into account the five hours of care per day that he was paying for. He said the Council had assessed Mrs X needed 24 hours of care per day and therefore it should pay for that level of care. The social worker explained the Council would provide funding for 24 hour care, but this would be within a care home setting. Mr X said that he did not want Mrs X to go into a care home. Mr X said that the carer he had arranged to provide five hours care, was paid cash on a casual basis, so he did not have receipts or records regarding the payments.
24. In September 2022 the Council says it considered whether it would continue the direct payment because Mr X had not provided the audit information it required. However, the Council also recognised:
• It had issued a direct payment agreement which stated “we will pay you £387.35 net per week” when it should have stated it would pay Mrs X £195.47 per week, which was the direct payment amount of £387.34 less Mrs X’s care charge of £191.88.
• It had used an out of date direct payment agreement.
• It had sent Mr X a text message which implied it would pay Mr X £387.34 but did not mention the care charge deduction of £191.88.
25. In October 2022 the Council carried out a care and support assessment because it noted the current direct payment was not meeting Mrs X’s needs. The Council agreed to increase the number of care hours to 37 per week. It also arranged 10 hours of care at a day centre.
26. Between June and November 2022 the Council asked Mr X five times to provide the audit information it required for the direct payments. However, Mr X did not provide this.
27. In December 2022 Mr X complained that the Council’s direct payment agreement said that it would pay Mrs X £384 for her care. However, it had not paid this. He said it had not explained Mrs X would have to pay care charges. He was not able to pay the extra himself. He also said that the care it had agreed was not enough to keep her in her home. He said he was in ill health, and it was causing anxiety.
28. The Council replied in January 2023. The Council said Mr X had completed the financial assessment forms so that it could calculate Mrs X’s affordable care charge. The Council had confirmed to Mr X, the care charge for Mrs X on 16 March 2022 and 21 April 2022. So it did not consider he was not aware of the care charge. The Council said the charge was not for Mr X to pay, but for Mrs X.
29. The Council accepted that the figure it gave on its direct payment agreement which Miss X signed was incorrect. It stated the direct payment would be £387.35 per week but this was an error. The Council apologised for this.
30. The Council said it would normally expect Mrs X to pay the unpaid care charges into the care account. These totalled £7853. But the Council said it would not pursue payment of the care charges from Mrs X because it accepted that Mrs X had made payments directly to her care and support providers.
31. In future, the Council said that as attorney for Mrs X, Mr X must pay the assessed weekly care charge on her behalf to the direct payment account. If he did not make the payments the Council said it would consider providing a commissioned care service instead. The Council sent Mr X a new direct payment agreement for him to sign.
32. In its response to our enquiries the Council said that Mr X was reluctant to sign the new agreement because he would not enter into another agreement until the Council paid the money that it owes. He has recently signed the agreement. However, it appears the personal assistant he planned to employ will not be available. The Council says it will provide a commissioned service instead of the direct payment arrangement.

Analysis

33. I consider the Council properly informed Mr X regarding the care charge that Mrs X was assessed to pay. The Council sent letters on 16 March and 21 April 2022. The direct payment agreement also stated that the Council would take the care charge away from the direct payment before payment. It also said the person receiving the care must make payment of the assessed care charge into the direct payment account. It appears that Mr X did not make any payments into the direct payment account for the care charges. Instead, he paid the carers directly using cash. This was not accordance with the direct payment agreement. It also meant the Council could not audit or check the way the direct payments were being managed.
34. There was fault by the Council in stating that it would pay £385 per week when it paid £195 per week. It also stated this in a text message. The Council has explained the reason for this mistake, and it has apologised.
35. I note Mr X says the Council should pay the amount that said it would pay in the agreement. However, I do not consider the Council should make this payment. I have considered the following when coming to this view:
• Mr X he stated in his complaint he provided care himself for the first 4-5 months between March and July 2022, so it appears no payments were made for the care agreed in the care and support assessment from the direct payment account.
• Mr X said that from about August 2022 he had reliable care in place.
• From June 2022 the Council asked for copies of direct payment bank statements and evidence of payments to carers but did not get a response. Therefore, the Council has not been able to verify the payments made for care that was agreed.
• In September a social worker asked Mr X why he had not made payments into the direct payment account. Mr X said that he was paying for five hours himself, and also said payments were made in cash.
36. I do not consider there is evidence that Mr X and Mrs X were disadvantaged or unable to pay for agreed care hours because of the incorrect stated amount.
37. Mr X complained the Council failed to recognise that Mrs X needed more care. I can see evidence that the Council recognised in September 2022 that it should review the care and support plan. The Council started the assessment in September and confirmed in the care and support plan of October 2022 that it would increase the care hours to 37 hours per week. However, it has not been able to put the agreed increased hours in place because Mr X did not wish to sign the direct payment agreement for the reasons explained above. In addition, it has proved difficult to find and arrange reliable carers.
38. Councils have a duty to meet eligible unmet needs. A Council can meet this duty by arranging care in a care home, by commissioning services, by making direct payment or other arrangements (Care Act 2014 section 8 and 18).
39. The Council has recently confirmed it will put a commissioned service in place to provide for Mrs X’s care and support. The Council has considered its duties to meet Mrs X’s eligible needs, as the direct payment arrangement could not continue. While it has taken some time to reach this position, I have not seen evidence of fault by the Council, due to the time taken by Mr X in agreeing to sign the DPA and difficulty finding carers.

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Final decision

40. I have found fault but no injustice. I have completed my investigation and closed the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman