The Ombudsman's final decision
Summary: We will not investigate Ms B’s complaint about the way the Council considered her complaints about the care and support she received. This is because the Council has explained what happened and although Ms B disagrees we are satisfied with the remedy provided. Further investigation is not warranted.
The complaint
Ms B complained the Council’s investigation into complaints she raised did not properly consider all of her concerns. Ms B says the Council: Did not tell her health care was free of charge or give clear information about what she could spend direct payments on and failed to consider information contained in a letter from her privately arranged therapist, that she could not transfer from privately arranged therapy to NHS care.
Failed to consider increase in anxiety and stress she encountered and the impact and implications of previous inaccurate assessments which contained inconsistencies and lacked clarity and were overturned necessitating her need to have a witness/advocate present during assessments.
Did not acknowledge a Mental Capacity Act (MCA) assessment was unnecessary, made false assumptions about her dependency, misunderstood her anxieties about not being in debt, not that she was in debt. Ignored commendation how well she managed her finances, and although refunded the amount to her bank account did not consider her bank fees.
Did not clarify direct payments were only to be used for activities and expenses outlined in her care plan and did not make it clear she needed to contribute towards her direct payment account.
Undertook a light touch financial assessment without her knowledge.
Has no assurances given negative experiences future assessments will not incur further distress.
Current direct payments do not cover all needs.
Ms B says an apology and offer of £1000 does not cover the injustice she has suffered because of the Council’s failings.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Ms B complained to the Ombudsman because the Council refused to investigate her late complaints dating back 2018. Ms B explained she could not complain sooner because of her health conditions. The Ombudsman recommended the Council undertake an investigation into Ms B’s concerns and it agreed to do this.
The Council investigated Ms B’s complaints in December 2021. It explained direct payments are to be used for funding adult social care and cannot be used to pay health care or privately arranged health assessments. While Ms B says she was not clearly advised of this at the time, records show she was in receipt of direct payments for several years prior to purchasing private health care and she had clarified points she was unsure of. Ms B says because her direct payments did not state the money could not be used in this way, it should logically follow it could be. However, Ms B could have checked with the Council as she had done previously if she was unsure about whether her direct payments could cover the cost of privately arranged health consultations and reports.
Case notes from December 2017 record a visit with Ms B in the presence of her advocate where direct payments and the ethos around direct payments were explained. Ms B received a direct payment booklet, and she was advised she could not use direct payments to fund a private consultations. The Council also confirmed in February 2018 Ms B could not transfer money back into her personal account to pay for health care and looked into whether she could access health care funding for her mental health support.
Ms B is concerned a capacity assessment was considered, even though it was not carried out, but we could not say this is fault. Given the difficulties encountered by Ms B in understanding direct payments and associated management of a direct payment account it is not fault for the Council to consider whether an assessment should be carried out to ascertain whether Ms B fully understood the roles and responsibilities of managing a direct payment account.
The Council’s response offers Ms B a further review of her Care plan so she can clearly understand what the direct payments can be used for. If Ms B is concerned about what she can pay for using the direct payment account or does not have enough money in the account to manage her assessed needs, she can ask the Council to undertake a review of her needs and/or Care Plan. The Council says although it is not responsible for charges Ms B has incurred on her account, if offered a one-off payment of £1000 as a goodwill gesture. Although Ms B is unhappy with this we are satisfied an apology and £1000 remedies the injustice caused to Ms B by the Council’s actions and further investigation is not warranted.
Final decision
We will not investigate Ms B’s complaint because we are satisfied with the remedy provided by the Council.
Investigator's decision on behalf of the Ombudsman