The Ombudsman's final decision
Summary: There was fault the Council did not fully consider Mr X’s request to reduce the information he needed to provide it while it was monitoring his direct payments. However, this fault is one which we would describe as a service failure. Any remaining injustice the Council’s actions caused Mr X by this service failure, has already been remedied by the Council’s actions, through its offer of moving him to a different payment scheme.
The complaint
Mr X complained the Council were too rigid in how it monitored his expenditure through its direct payment scheme. He said after he asked it to reduce the monitoring, it only considered altering the timing of when he had to send information and did not reduce the amount of information it asked for.
Mr X said this caused him unnecessary inconvenience and is evidence the Council has not fully taken account of his disabilities.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended) 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)
How I considered this complaint
I spoke to Mr X and considered the information he provided.
I asked the Council for more information and considered the documents it provided.
I considered the care and support statutory guidance relevant to direct payments.
Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
What I found
What should have happened A direct payment is a payment made to people with eligible care and support needs so they can arrange their own care, rather than the Council arranging it for them. A person can allocate a representative to manage the direct payment on their behalf.
Statutory guidance The care and support statutory guidance (the guidance) says for direct payments to have the maximum impact, the processes involved should be minimised to an extent that it is carried out to ensure the Council can fulfil its statutory responsibilities. It also says it must not place undue burdens on people to provide information to the local authority.
The guidance also says Council’s must ensure payments are meeting care and support needs set out in a person’s plan, and there must be systems in place to proportionally monitor direct payments to ensure effective use of public money.
Finally, it says Council’s should consider lowering monitoring requirements for people that have been managing direct payments for a long time without any concern.
What happened The Council has been making direct payments (DP) to Mr X for his care and support needs. Mr X said this has been the case since 2016 and he told us he is visually impaired and lives with other multiple disabilities.
In 2021, as part of the DP monitoring arrangements, Mr X sent copies of his monthly bank statements to the Council every three months. Mr X then asked for this to change, and the Council agreed he could send the monthly statements every six months instead.
In June 2023, Mr X wrote to the Council saying he was unhappy that a recent letter it sent him was not in the larger font he had previously specified. He also queried why it was the case the Council expected him to produce information on his account for each month’s expenditure, because he felt this was excessive.
In early August Mr X made a formal complaint.
In August and September, an officer from the relevant Council department and Mr X exchanged emails. In that exchange the officer twice asked Mr X what he saw as a reasonable monitoring period.
In response, Mr X told the Council he wanted it to reduce the overall burden on his requirement to send it information, rather than changing the timings of when he needed to send information. Mr X told the Council he wanted to send it ‘random selected statements only’.
In January 2024, the Council and Mr X had another discussion about his DP arrangements. Mr X then asked to change the frequency of information he had to provide to a monthly cycle, because he said this was easier for him to manage. Around this time, the Council also made an offer to him, to consider moving to a pre-paid card payment option.
Following this the Council sent Mr X a formal complaint response. It apologised for the earlier letter which was not sent in line with Mr X’s requests (paragraph 15). It also said it had arranged for a social worker to carry out another assessment and it said the social worker would discuss a pre-paid card payment option for him, which it said would help with the monitoring.
The Council later told me that during the exchange it had with Mr X (paragraphs 17 and 18), it did not fully consider reducing Mr X’s monitoring requirements in the way he was requesting, because it had not properly understood this was what he was asking for.
The Council also provided me with information that it is planning to alter the way many of its service users operated their DP’s by making an offer of the pre-paid card payment option. The Council said this would mean it could monitor a service user’s expenditure remotely, and this would remove the requirement for it to be provided bank statements. The Council said it had employed a member of staff to assist service users moving to this new process.
My findings
Mr X said the Council were not acting in line with guidance which meant it should consider reducing the overall burden of information he needed to provide it. The evidence shows the Council acknowledged his request but did not fully understand what he was asking for.
It is the Council’s eventual decision to make on what information it requires in any given DP arrangement, but the guidance says it should consider any reasonable request and decide. I find on balance because it didn’t fully understand, this meant it did not properly consider his request and then decide its response. That is a fault in communication.
However, this fault is one that would be better described as a ‘service failure’. The law confirms that failure of the Council to provide a service, does not imply bad faith and despite its best intentions in this case, it did not fully understand and therefore consider Mr X’s request. The evidence also shows it continued to try and resolve Mr X’s requests after this point and that is appropriate.
However, any injustice there was to Mr X by the Council’s actions in not fully considering his request, has already been remedied by its subsequent offer of a pre-paid card payment option.
Final decision
I have completed my investigation with a finding of fault by service failure. However, I do not need to make any recommendations, because the Council have already made an offer of a service, which I am satisfied was a sufficient remedy for any remaining injustice Mr X may have had.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman