Hampshire County Council at fault for failing to backdate direct payment to match increase in cost of care

Decision Date: 12th September 2019

What Happened

Mr X complained on behalf of his daughter, Miss X.

The Council provided Miss X with a personal budget to pay for a live-in carer and another care agency to provide cover.

Following a review of Miss X’s needs in December 2017, the Council gave her a personal budget of £1,138.86 a week (£922.28 for the live-in carer, £216.58 for cover).

Miss X had £45,235.83 sitting in her direct payment account. The Council reclaimed £37,447.54, leaving her with enough to pay for six weeks of care plus an outstanding invoice.

When the Council next assessed Miss X’s own finances in February 2018, it decided she could afford to pay £86.17 a week towards her care. This increased to £89.96 in April 2018.

The care agency providing cover for the live-in carer’s breaks told the Council it was increasing its charges from 9 April 2018. The Council therefore wrote to Miss X saying it would increase her personal budget.

Mr X said he told the council in June the cost of the live-in care would increase from 24 June 2018, but the Council had taken no action over this.

On 6 March 2019 the Council wrote to Mr X apologising for delays in resolving his daughter’s direct payments. It said her personal budget was £1,161.42 a week (£944.84 for the live-in care and £216.58 for cover), and it would backdate the budget to 24 June 2018. That decision did not take account of the increase agreed to be paid since April 2018.

On 20 March 2019 the Council invoiced Miss X for £4,674.53 due to a supposed overpayment of her direct payment “as advised in the letter recently sent to you”. But its recent letter had made no reference to an overpayment.

Mr X has since paid this money back to the Council from his daughter’s direct payment account.

After he complained again, the Council wrote to Mr X on 15 April. It apologised for not taking account of the increase in the hourly rate for the live-in carer’s cover from “1 April 2019” when it should have said April 2018.

The Council’s records of its own payments to Miss X show it did not take off her increased assessed contribution until May 2019, this explaining the apparent overpayment.

What was found

There was no dispute over the fact the Council took too long to respond to Mr X’s concerns. However, it had still not corrected all of its errors. In March 2019 the Council confirmed it would backdate an increase in the cost of the live-in carer to 24 June 2018, but through its considerations the LGO found that it did not actually do this.

  • That was fault by the Council.

The Council failed to take off Miss X’s contribution from its payments to her, until May 2019.

While that was fault by the Council, which added to the confusion, the Council was entitled to ask for the money to be repaid.

Nevertheless, the LGO recommended the Council pay financial redress to Mr X, to reflect the time and trouble put to in making the complaint for his daughter.

Points for the public and for councils

This is precisely the sort of incompetence that the complaint system should always be able to resolve and there is no real ‘law’ involved here.

There is no clue in this report how the council’s intransigence or lack of attention failed to put the matter right at the earlier internal stage, or why the poor family had to go to this extent of complaining further, which is mind-boggling, to us.

A direct payment can generally be paid net so that any increase in charges that is valid and unchallenged can be reflected in a lower direct payment. The person’s budget remains the same – it’s the cost of the entire package, including the person’s own assessed financial contribution.

If that is not done, by reason of incompetence, and it’s paid gross ON TOP of the charges claimed, then that is an overpayment – a double payment – and of course the council can reclaim it but they do have to get the period right and not overlook that the direct payment itself may have to be amended on account of increases in the price of care.

It seems to be beyond the wit of a software company to manage those two issues in conjunction with one another, for councils in general.

If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.

The full Local Government Ombudsman report Hampshire County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/direct-payments/18-007-332

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