Worcestershire County Council at fault for failing to properly explain the charging and net direct payment process, failing to monitor a direct payment account, and failing to engage consistently with a person’s financial representative

Decision Date: 17th November 2020

What Happened

Mrs Y complained on behalf of her adult son, Mr X. 

Mr X was a man with Autism, previous mental health needs and communication difficulties.  His only income came from benefits. Mr X had been assessed by the Council as having eligible needs under the Care Act 2014. It was agreed his needs would be met via direct payments (DP). 

The LGO was told by the council that the direct payments were set up by a “Community Psychiatric Nurse under a previous working arrangement.”

All communication regarding Mr X’s care and finances went via Mrs Y. She was “the service user’s financial representative” and was listed as his appointee in October 2018. 

After a financial assessment was completed in October 2018, Mr X received a DP of £240 every four weeks to help promote his independence with daily living tasks.

The level of support Mr X required each week varied, so money could accrue in the account. 

Mrs Y stated that the Council paid £3430 into Mr X’s DP account before the October 2018 financial assessment without informing her. She only became aware of the deposit when she asked for account statements after the Council asked for payment of backdated contributions.

The October 2018 assessment concluded that Mr X should contribute £59.93 for his care each week, and informed Mrs Y of the outcome in a letter. 

Mrs Y said the letter was unclear about how much contribution was due, and said she expected to receive a bill later for the amount. 

Mr X received a letter and invoice from the Council for £2345 in backdated client contribution charges nine months later, in June 2019. The letter stated that if the debt was not settled the Council may take legal action. 

Mrs Y firstly complained that the Council should not have contacted Mr X directly, as it caused him much distress. She also disputed the amount, and broke down the care hours and cost Mr X received in a letter to the Council, and concluded that the contribution amount should be £1599. 

From discussions with the LGO, it became clear that Mrs Y thought that Mr X only paid a contribution for the support he used, rather than the whole direct payment paid. It was clear that the Council had failed to explain properly the DP process, which led to her not understanding the process properly. The council’s monitoring of the account had also been poor. 

Mrs Y sent numerous emails to the Council attempting to clear up the situation, but even after a senior member of the financial team told her they would investigate the situation further, she never heard anything back. 

On 7 July 2019, the Council paid £2160 into Mr X’s direct payment account without explanation. Mrs Y received no response when she queried the deposit with the Council. 

The Council removed the funds without explanation. 

Mrs Y formally complained on 31st July 2019, and the Council did not reply. 

Mrs Y complained again in November (specific issues raised were not set out in the report), and the Council replied to parts of her complaint. 

In February 2020, the Council wrote to Mr X directly again. It told him that the balance of DPs he could hold in his account was being reduced from 8 weeks to 6, and that the Council could reclaim anything over that amount. 

Mrs Y says that she was only informed on March 5th of this change. She was also told that the DP account was changed to a deposit only account and as a result she couldn’t access the account to settle any outstanding bills. 

Mrs Y remained unhappy, and eventually complained to the LGO.  

What was found

The LGO stated that although the Council said that the DP was a prior arrangement set up by a community psychiatric nurse, that arrangement no longer existed. Regardless, the Council remained responsible for the actions of whoever it contracted out direct payment support services to. Therefore, the fault lay with the Council.

The LGO stated that the DP process was not sufficiently explained. This was fault. There was evidence of confusion throughout, the information the Council gave was unclear, therefore  the LGO considered Mrs Y’s confusion understandable. 

The Council paid money into Mr X’s account without informing Mrs Y in October 2018, so a large sum gathered in the account. This was fault. The Council did the same again in July 2019 and failed to respond to Mrs Y’s queries. This added to Mrs Y’s confusion. 

The Council on numerous occasions contacted Mr X directly, despite being aware that Mrs Y was his financial representative and all communication should be through her. This was fault. The LGO said it was fortunate that Mrs Y was able to manage the situation to prevent significant distress to Mr X. 

Mrs Y refuted the amount of client contributions and contacted the Council about this. The Council failed to respond with a clear explanation. This was fault. 

Mr X’s client contribution increased from 30 May 2020 to £63.59 per week, and this exceeded the sum of the direct payment. As a result, the net direct payment to make up the budget was zero and has now ended.

The LGO recommended that the Council should:

  • Apologise to Mrs Y
  • Review Mr X’s support plan
  • if Mr X had missed out on eligible needs support,  offer additional support/appropriate activities
  • discuss the option of future direct payments or commissioned services with Mrs Y
  • pay Mrs Y £250 for her time and trouble pursuing the complaint
  • ensure direct payment recipients are provided with an adequate explanation of the process and ensure there is suitable arrangements in place to monitor.

Points to note for councils, professionals, people using services, carers and advocacy services

This complaint highlights the impact of poor information, poor communication and a lack of regard for the need to explain processes that may be unknown to those using services and/or their carers. 

The council needed to ensure from the outset that it gave information about direct payments. The Care and Support statutory guidance outlines the following at paragraphs 12.7 and 12.8:

12.7 The availability of direct payments should be included in the universal information service that all local authorities are required to provide. This should set out:

  • what direct payments are
  • how to request one including the use of nominated and authorised persons to manage the payment
  • explanation of the direct payment agreement and how the local authority will monitor the use of the direct payment
  • the responsibilities involved in managing a direct payment and being an employer;
  • making arrangements with social care providers
  • signposting to local organisations (such as user-led organisations and micro-enterprises) and the local authority’s own internal support, who offer support to direct payment holders, and information on local providers
  • case studies and evidence on how direct payments can be used locally to innovatively meet needs

12.8 This will allow people to be fully aware what direct payments are and whether they are something that are of interest. In addition to this general information, authorities must also explain to people what needs could be met by direct payments during the care and support planning process.

In this complaint, it is not surprising that Mrs Y became confused. The process was set up by a health professional, presumably with delegated authority to do so but the council remained responsible for ensuring that the person understood the process – and should have ensured that any delegate knew what they were doing.

It’s common that people think that they only need to pay if they use the care week by week, but that is not how the charging framework is seen by councils. They work the sums out over a year, and do not promise to keep the ratio of charge to care cost consistent.   

Had the council checked that the process was being properly managed it would have become aware much sooner that a problem existed. It could have certainly addressed the confusion Mrs Y had about the amount that Mr Y needed to contribute. 

The council had also needed to inform Mrs Y of the payment it would make. It responded to a complaint by removing the money without further explanation. 

The Care Act 2014 is very clear about the importance of communicating with the person’s representative, anyone named or anyone interested in the welfare of a person lacking in capacity, regarding their care and support planning. It was documented that Mrs Y supported Mr X with his finances and due to the lack of regard for this by the council she was required to manage the distress experienced by Mr Y when the council wrote to him directly. 

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 of Worcestershire County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/charging/19-019-886

Leave a Reply

Your email address will not be published.