Summary: Mr B complained the Council did not deal with a surplus on a direct payment account in the proper way and, as a result, his son paid more for his care than he should. There was fault by the Council but it did not cause significant injustice.

The complaint

1. I refer to the complainant as Mr B. He complained on behalf of his adult son, Mr X. Mr X used to receive direct payments to support his adult social care needs. A credit built up on the account and the Council asked Mr B to refund it, which he did. But Mr B considered the amount the Council asked to be refunded was too high and a proportion of it should have gone to Mr X as it was his contributions for his care which he did not receive.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 considered the complaint and documents provided by Mr B and spoke to him. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr B and the Council and considered their comments.

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What I found

Summary of the key events

5. Mr X first started to receive direct payments in 2015. By the summer of 2018 there was a credit of over £9000 in the account. The Council proposed the amount be repaid but in response to Mr B’s request it was agreed to use the credit on the account up until it fell to £1000.
6. That did not happen. Instead in January 2019 the Council reassessed Mr X. It decided he needed to contribute more to his care costs. The Council recommenced making payments to the account in April 2020. Mr X did not make any payments to the account.
7. It was agreed in the summer of 2021 that the direct payments should stop as they were not being used. The Council then asked Mr B to repay the amount left in the account. Mr B considered this was wrong because his understanding was that if there was a surplus in the account it would be refunded, split between Mr X and the Council in the same proportion as the payments each had made. He said that the agreement he first signed in 2015 made no mention of what happened if there were a surplus on the account. The second agreement in January 2019 had different wording and said that the client contribution was the property of the Council.
8. There was correspondence between Mr B and the Council into 2022 as Mr B disagreed with the Council’s position. In August the Council said that any contributions made by Mr X had been used on care so could not be reimbursed. Mr B paid the sum.
9. In 2023 he complained to us.

Analysis

10. A significant point has been Mr B’s understanding that any surplus on the account would be returned based on the proportion of the contributions made by Mr X and the Council. The wording of the two agreements he signed are different and the second is more explicit about the status of the client contribution being the property of the Council. But neither are clear on what happens in the event of a surplus accruing. However, this is not a significant point as I will explain below.
11. The Council is correct to say the client contribution is used first to meet care charges. And it would only be where care has not been provided that client contribution would be refunded. That did happen here, that is not in dispute, so I will not refer to it further.
12. The Council accepted it was at fault in how it acted in July 2018. It should not have agreed to leave the surplus in the account to be used on Mr X’s continuing care. This fault complicated matters because it meant the ongoing care was not being funded on the proper basis. Where there has been fault we look to see what should have happened and whether the complainant has suffered an injustice as a result.
13. Mr B’s view was that he had understood until July 2018 that any refund would be proportionate to the contributions made. If I accepted that misunderstanding was because the Council had not been clear, then it would be fair to consider what should have happened on that basis. I estimate Mr X would have been refunded something over £2700 in July 2018. However, Mr X would then have started making contributions to his care for the next three years until the direct payment arrangement stopped. If he had done that then I estimate those contributions would have been over £3000. Therefore, he would have had to pay more after the refund should have been made than he would have been refunded. So did not lost out because the matter was not dealt with as it should have been in 2018.
14. In response to the first draft of this statement Mr B made a further point. He said that had he known at the beginning that Mr X’s contributions were used first then he would have managed the account differently. He would have considered the cost of some of the activities Mr B did because they were not good value for money given the total cost and the relative contributions between Mr B and the Council. He would not have allowed such a large credit to build up. I accept Mr B’s point but I do not consider it is now possible to say what difference it would have made as it would be too complicated to come to a sound view on what would have happened in 2015-2018.
15. So, in summary, there was fault in 2018 in the Council not resolving the matter properly but that did not cause injustice. Therefore, there is no basis for a refund to be made to Mr X.

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Final decision

16. There was fault but it did not cause significant injustice.

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Investigator's decision on behalf of the Ombudsman