The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council not automatically applying rate uplifts to direct payments. This is because there is insufficient evidence of fault.
The complaint
Mr X complains the Council does not automatically apply rate uplifts to direct payments. He says that care providers directly contracted by the Council will get an uplift automatically. He says this is causing his company financial pressure.
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 impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X is the director of a care provider who contracts with individuals who receives direct payments from the Council to pay for their care and support. He says the Council’s refusal to allow automatic uplifts to direct payments is causing his company financial pressure as the hourly rate paid to them remains unchanged, despite the market rate increase for other providers.
With direct payments, the Council has no contractual relationship with the care provider the resident receives care from. Instead, it is the resident who receives the direct payment who has the contractual relationship with the care provider. Therefore, the agreement of the terms and conditions of the contract, including the price of services, is between the care provider and the individual.
In response to Mr X’s complaint, the Council confirmed Mr X had the option of joining the Council’s supported living framework. The Council said this would provide the solution Mr X was after, which was for an automatic annual increase in fees as the Council would be directly contracting with Mr X’s company.
The Council also confirmed that any request for an increase in direct payments should be presented in the resident’s annual review of the care package. This would allow the Council to consider any request for increase in rates due to the care provider increasing its fees. The Council said it needed to understand how the funding was being used and whether it was sufficient to meet care needs and therefore could not just automatically apply uplifts.
An investigation is not justified as we are not likely to find fault. This is because the Council has provided a clear rationale as to why it cannot apply an automatic uplift for direct payments in the same way it does for its contracted care providers. It is open to Mr X to apply to join the Council’s supporting living framework which would in turn allow his company to be contracted for services by the Council.
Further, it is clear the Council has a system in place (annual reviews) which allows for residents to request an increase in their direct payments where necessary. There is nothing to suggest Mr X must first wait for a resident’s direct payments to be increased before increasing his company’s fees for services. In addition, Mr X can stop providing services to the resident if they are not able to meet his hourly rate for provision.
I note Mr X considers the Council is failing to complete annual reviews for residents. However, this is for the individual resident to follow up on with the Council.
Final decision
We will not investigate Mr X’s complaint because there is insufficient evidence of fault.
Investigator's decision on behalf of the Ombudsman