Decision date: 19th November 2019
In May 2012 Mrs B started getting a direct payment for social care, primarily to employ a personal assistant.
Between April and July 2013 the Council audited the direct payment, checking bank statements provided by Mrs B. It did not raise any concerns.
In May 2015 the Council wrote to Mrs B requesting original bank statements, timesheets, and wage slips, invoices, receipts, tax and national insurance contributions, employer’s and public liability insurance policy and any other paperwork from 20th June 2011 to 30th April 2015. There is no record of the Council receiving that information or actually carrying out the audit in 2015.
A council report dated 30th June 2016 raised concerns about some expenditure, changes to printed out online bank statements, misuse of funds and fraudulent statements. A letter to Mrs B dated the following day said she had been selected for a “random audit” covering from 12th July 2011 to 30th April 2015.
The Council finished this audit in August 2016, deciding Mrs B had misused part of the direct payment and had not provided wage slips for some of her overnight care from her husband.
On 19th October Mrs B conceded to a social worker that she had not managed the direct payment account well. On 4th November 2016, going forwards, the Council confirmed that Mrs B would get 44 hours a week care, 25 of which would be provided by her husband.
The LGSCO’s report states without further detail that on 8th November the payroll aspects of the direct payment was switched the Penderels Trust.
On 12th November she received a demand for repayment of £53,145.25 of the direct payment. Mrs B disputed the demand on 18th November, asked for a meeting about it on 19th December (2016) and chased the request on 6th January 2017. On 20th January the Council said a meeting was not needed.
Mrs B said the £53,145.25 was properly used to pay her husband to meet her needs and backed this up with the fact that the NHS now funded a larger care package. The Council said she had failed to evidence the care he provided (but it accepted that he had provided 25 hours a week care and that this was an appropriate way to meet her eligible needs) and that she further had spent £21,768.26 on items not covered by the care plan (some of which, however, were included on bank statements she had shown the Council in 2013).
It is not clear from the LGSCO’s report whether the items were ones were not explicitly covered by the plan but which did contribute to meeting her eligible needs, or whether they were entirely inappropriate. The report says that “Based on [the support plan and bank statements] I understand why the Council has concerns,” suggesting they may have looked inappropriate, but also that “Without any annual reviews or communication with Mrs B about concerns between 2012 and 2016 I cannot see how she could have known she was not managing her direct payments account properly.”
What was found
The Ombudsman found fault with the Council for:
- failing to carry out annual reviews of the direct payment;
- failing to make Mrs B aware of concerns after the 2013 audit, thus not giving her a chance to amend her spend or improve her record keeping;
- failing to consider properly whether to recover the whole £53,145.25 paid to her husband even though it accepted that he had been providing 25 hours per week care throughout the period, and that it had made no objection to him being employed.
As the LGSCO points out, a partner can only be employed on using a direct payment if the local authority considers it necessary [as per regulation 3, the Care and Support (Direct Payments) Regulations 2014]; but this was not in question here]
The Ombudsman was also concerned that there was:
- no evidence that the Council considered whether the misuse was intentional and thereafter whether or not to recover the money, as required by its own guidance;
- no evidence that it had a proper discussion with Mrs B or ever gave her a chance to provide further information or evidence;
- no evidence that it considered the circumstances in which she spent the money, or the impact of its failure to communicate any concerns about spending between 2012 and 2016.
The LGSCO recommended that the Council:
- recalculate the overpayment to her husband, not reclaiming the whole £53,145.25, but only what he was paid over and above the agreed and acknowledged 25 hours per week;
- write off the £21,768.26 spent on non-care-plan items (because of the lack of opportunity for Mrs B to put this right due to the Council’s fault);
- apologise for the failures in how it dealt with her direct payments account and for failing to consider meeting with her to explain its concerns in more detail.
The Council agreed to all recommendations.
Points for the direct payments users, carers, the public and councils
The Ombudsman investigated this “late complaint” even though the events happened considerably more than a year ago, because the Council did not make Mrs B aware of their concerns until 2016, and since then she had been in regular correspondence with them about it: this is an appropriate use of discretion, and the one year rule is only meant to limit the bringing of matters which have been closed for some time.
The Council’s repeated own failure to support Mrs B to manage her direct payment better largely outweighed her mismanagement, although the Ombudsman accepted the Council was right to recover payments to her husband over and above what was in the agreed care plan. Other spending on non-care plan items was written off due to the Council’s chronic failure to help her identify it as mis-spending.
Although Mrs B had signed direct payment agreements committing her to keep wage slips, and she had (in part) failed to do so, the LGSCO considered that this failure was not decisive because the Council already accepted that the (25hpw) care had been provided, even if it had not been evidenced with wage slips. 25 hours a week at an average rate of £7 an hour per year is about £9000 per year, and therefore even 6 years of that amount of work would have wiped out the whole reclaim.
The Council’s own local direct payments policy and staff guidance (but not its actions) were compliant with the law, allowing employment of family members and/or partners living in the same household to be employed on a case-by-case basis, requiring annual direct payments reviews, and requiring possible misuse of funds to be discussed with the service user and rational decisions made as to (a) whether the misuse was deliberate and (b) whether or not it should be recovered, and stating that a care plan should clearly specify what the direct payment could or couldn’t be spent on.
The care and support statutory guidance does not specifically discuss recovery of mis-spent direct payments funds under section 33(5) of the Care Act 2014, but Annexe D on recovery of debts in general stresses that due to the vulnerability of service users and the duty to meet their eligible needs and to consider their well-being, “6) … possible debts must be discussed with the person or their representative” and “8) Local authorities should also bear in mind that they are bound by the public law principle of acting reasonably at all times and must act in accordance with human rights legislation, as well as the wellbeing principle set out in the Care Act. Given this, a local authority will wish to consider all other reasonable avenues before utilising the powers provided under the Act.”
Public law principles of legality, rationality and fairness require the council to follow the law and guidance unless there is good reason not to, to give clear reasoned decisions which appropriately weigh relevant reasons, and to allow an opportunity to respond with counter arguments or new evidence. None of these principles was applied by Nottinghamshire County Council in this case.
The report doesn’t go into the extent to which the council explored whether Mrs B was still able to manage direct payments, or might have been be able to do so with assistance. It’s not clear whether Penderels doing the payroll and payments was the client’s choice or imposed upon her as a condition of having a direct payment.
“Difficulties will not necessarily mean that the person cannot manage. There is inevitably a learning process when people begin to receive direct payments. People may make mistakes but still be capable of managing direct payments in the longer term. Even experienced direct payment recipients can have problems at times, but, with some support, be capable of overcoming them.” (Guidance on direct payments: For community care, services for carers and children’s services, England 2009)
It seems likely to CASCAIDr, given the information provided by the Ombudsman, that the decision to switch the direct payment tobeing managed by Penderels, which is to say one that was managed on Mrs B’s behalf by a provider nominally of her choice, will in reality also have been made peremptorily without compliance with public law principles, with no consultation, no proper discussion of the decision with Mrs B, and no serious attempt to consider alternative solutions to the issues in the management of the direct payment.
The concept of ‘a managed account’ is quite ironic, much as was the name In Control for the movement that got Personalisation off to an early start around 2005 – begging the question who is managing and who is in charge or control!
‘Managed’ here, could mean ‘managed, whether or not the person likes the outcome’ or it could mean ‘managed on behalf of and at the behest of the DP holder’.
There is no possibility under the Care Act of taking a direct payment away from a mentally capacitated individual and then making them have one where they are not in control of the manager, (unless they agree of course, for fear of losing the employment of a relative); it’s not a direct payment then, at all, and nor is it a payment with access to a person to help one meet the requirement of capability to manage the responsibility for the payment. If the council is anything more than an AGENT when purporting to ‘manage’ in this sense, then it is really simply purchasing and contract managing a commissioned service, not a direct payment at all.
If such processes had duly taken place, we cannot guess whether or not a managed account would or would not have been found to be a proportionate and satisfactory arrangement, or whether (for example) more regular monitoring by the Council would have been enough of a safety net while Mrs B to learned better direct payment management skills. Perhaps this just seemed to Mrs and Mr B a lower priority for challenge than the £75,000 debt the Council was alleging, while the LGSCO will have had no reason to consider this, as it was not raised by the parties; but it is at least conceivable that it was just as unlawful.
As the statutory guidance does not specifically discuss appropriate recovery of misspent or unspent direct payments, the pre-Care Act direct payments guidance (also statutory) remains of some relevance here: “130 … Reviews should be undertaken in partnership, allowing for the fact that people may not get everything right first time and that it is normal for people to want to change their minds and make adjustments to improve things. Where problems arise, councils should be prepared to consider the reasons for such problems. Rather than assuming that the risks to that person of receiving direct payments are too high, councils should be prepared to work with the recipient to identify changes that can enable them to manage, perhaps with a greater level of assistance in the short or longer term.”
In the continual tension between legal duties, social work values and best practice, and financial management, and as councils struggle with increasingly constrained funding settlements from central governments, the system is tearing apart. It is common for councils unlawfully to seek to save money by relying on an unpaid carer even when that carer is unwilling (but unaware that the law gives them a choice), and common to find Councils taking hasty and improperly reasoned decisions not to allow spouses, partners, and close relatives or their partners to be employed and paid through a direct payment, when there is nobody else willing to do the care at all, for the value of the budget allocated. Compounding those tendencies by seeking for inadequate reasons and without due process to claw back money paid and spent on care, is indefensible for professionals in the public sectcor.
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The full Local Government and Social Care Ombudsman report of Nottinghamshire County Council’s actions can be found here: