Decision Date: 26/11/2022
What happened
Mr X complained for his mother-in-law, Mrs Y, about Care Act care planning.
Mr X held an LPA for both property and finance and for health and welfare for Mrs Y.
Mrs Y was paying privately for her care. We are not told whether the family were helping out financially or physically, or how she was maybe running out of money or going below the upper capital threshold or whether or not her house was being counted, or if she even owned her home.
The complainant contended that the council had ‘disregarded Mrs Y’s well-being’ and her wish to remain at home.
Mr X said that if she needed 24hr a day care, the cost of THAT input should be the measure of the direct payment it had offered.
The council worked that out by the hour and refused to countenance paying that much and offered a care home instead, and when that was refused, offered a payment for care at home through a direct payment of the cost of the care home only.
Mr X also complained that the council delayed the financial assessment leading to a large overpayment of direct payments, and that the expectation that this excess should now be repaid, caused an injustice.
The Council concluded in June 2021 after an assessment that Mrs Y needed 4 calls a day or 17.5 hours a week. Mr X contended that she needed 24 hour home care even at that point.
The Council said it could not source even the care package that it had offered, due to lack of domiciliary care workers in the area.
The Council admitted that there had been some fault on its side, in that the initial referral for a financial assessment in June 2021 was not received by the Council’s finance team (from the social work team, presumably).
The Council then reassessed Mrs Y in September 2021 as needing 21 hours of support during the day, in the week and five nights of support as her needs had increased.
[We would point out that that was at least 7 x 5 nights = 35 hours of night time care and 21 daytime hours, ie over 55 hours a week, up from 17.5 hrs per week, itself quite a surprising uplift, in our experience].
Mr X said Mrs X (and/or they, it’s not clear) were running out of money for the privately purchased care package.
The Council said it could provide an urgent Direct Payment (before the financial assessment) for the cost of the care it had lately care-planned for, as needed.
That was set up in October and backdated to 4 June 2021 at £722 per week.
[We are not told how this was worked out, but that would work out at about £13.12 an hour if every single hour was being paid for BY the hour.]
The Council said it told Mr X on the phone that ‘the agreed funding is subject to a financial assessment being carried out. Following the assessment, should Mrs Y be assessed as having to make a weekly contribution towards the cost of her care, [so] Mr X should agree to make a backdated payment and to ensure that Mrs Y’s assessed charge is paid into the direct payment bank account on an ongoing basis.’
However, whether or not that call was ever made, it turned out that when the direct payment was initially set up, a standard letter from the council to Mr X said ‘you are not currently required to make a service user contribution. This is subject to a financial assessment. If you have not heard from the financial assessments team within 28 days of this letter, please contact them as the Council will backdate charges to the start of the Direct Payment’.
On 12 November 2021 the Council wrote to Mr X to say the weekly assessed charge would be £880 per week (because Mrs Y had an income of £1000 per week from pensions); effectively, she was assessed as capable of paying for the WHOLE of the cost of the care, because one cannot lawfully be assessed as liable for any more than the cost to the council.
The Council then paid Mrs Y enough for at least 30 weeks of the care. It did not ‘net off’ the charges due, against the overall cost of care, as some councils legitimately do, and that would have avoided the whole issue, given the finding about the full cost payment status of Mrs Y.
In February 2022, however, a re-assessment said this time that ‘Mrs Y needs 24 hour care support’.
The care PLANNER thendecided that Mrs Y needed 24 hour care in a dementia skilled nursing home, and identified one which it believed could meet Mrs Y’s needs at £692 per week.
Mr X said he felt it was in Mrs Y’s best interest for her to remain at home for as long as possible.
The Council said its intention ‘was for the Direct Payment of £692’ to support this position, however at this point Mrs Y was deemed to be self-funding because of the high service user contribution. The Council has not received any financial returns from Mr X.’
Mrs Y stayed at home until she moved to a dementia nursing home in May 2022, whether by the council or the family, we are not told.
The Council said as Mrs Y’s financial contribution was higher than the cost the care she’d been assessed for at home, it wanted the £21,982 it had paid over, to be paid back.
What was found
The LGSCO’s view was that there was no evidence that the delay, which it admitted, in financial assessment, actually led to the injustice Mr X claimed.
The delay did not cause a financial injustice, as Mrs Y continued to pay privately for her care until Mr X contacted the Council in September 2021, and would have had to do so, or paid full cost, anyway.
The money had only been in her account for 4 days before Mr X was made aware that they would need to contribute the full amount towards her care and so would need to repay the money.
So although this was indeed fault, the Council said that it would reduce the debt owed by £2000, and the LGSCO investigator thought that was sufficient and indeed, generous.
Direct payment amount
The report said the Council considered Mrs Y’s needs could be met in a nursing home which had an available place, so that direct payments would be offered at the rate of a nursing home (£692 per week) which the family could use towards a private care package.
Regarding the cost of the care Mrs Y had received at home, the Council had said this:
‘it creates care plans that acknowledge people’s views and wishes but take account of the need for us to meet eligible need in the most cost-effective way. This is a fine balance, and we need to consider on a case-by-case basis what is fair and affordable. When undertaking the support plan for Mrs Y we talked to Mr X about what he thought would be in Mrs Y’s best interests. We were clear with the family that we would not be able to meet their expectations for 24/7 care at home but what we would be able to provide was a Direct Payment for the amount it would cost us to meet Mrs Y’s needs. We deemed that we would be able to meet Mrs Y’s needs in relation to her health and well-being in a dementia nursing home and therefore offered a Direct Payment at this rate. The Direct Payment offered Mrs Y and her family choice and control as it would have allowed the family flexibility to top up to their preferred care and support package’.
The care assessment of February 2022 said this:
‘Mrs Y needs 24 hour care support. This care would cost £2072 per week if the family did not support. Mrs Y is financially assessed as having to contribute [a maximum of] £880 per week towards her care. Mrs Y’s family have asked that the Council pay the full amount of the care minus the financially assessed contribution.
…’Mrs Y has made is clear that she wishes to stay in her own home and her family, as decision-makers, honour that. Mr X and other family have LPA to make decision on her care and support needs as Mrs Y has been assessed as lacking mental capacity to make these decisions’.
The LGSCO specifically considered Paragraph 10.27 of the Care Act guidance which says ‘in deciding how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties. This includes the importance of ensuring that the funding available to the local authority is sufficient to meet the needs of the entire local population. The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in deciding how an individual’s needs should be met (but not whether those needs are met). However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles. The authority may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs, and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest choice; but the one which delivers the outcomes desired for the best value.’
The Council has assessed Mrs Y as needing 24 hour care. It has considered Mrs Y’s wish to remain at home by offering Mrs Y a direct payment towards receiving care at home rather than a nursing home placement.
The LGSCO’s reporter clearly considered this to be lawful, which would be handing something to councils that they have wanted to see established by a judgment in the Administrative Courts for about 25 years, but have never seemingly had the courage to put before a judge, lest the decision go the other way.
Points for the public, social workers, assessors, planners, family members and advocates, senior management and hospital discharge staff
The LGSCO said that as the council had determined that Mrs Y’s needs could be met in a nursing home which had an available place it was lawful to set her personal budget at this cost.
We feel compelled to flag up that that is by no means obvious to social care lawyers. Case law dating back to 1996 makes it clear that the council can decide between two appropriate alternative means to meet needs – including as between two different types of setting – and choose the cheaper one to make into its Care Act care plan. There is no need for that to be formally consented to, but the question lurking in this report is what is the council obliged to do if the client or their welfare attorney says ‘No Thank You’? Does the council just walk away, on the footing that saying no is the client’s prerogative, if the client does not care to bring judicial review proceedings? Or does the council have another go and another and another, and if so, is it still bound by the Care Act and public law, such that it cannot plan to leave unmet needs knowingly unmet and cite client ‘choice’ as the reason?
The principle that one can make the leap from identifying a suitable cheaper alternative to making a capped offer of care at home, or funding for it, under the Care Act, is definitely not established in law. We think that it is a genuinely moot point but that the wider body of case law underpinning the Care Act points to the need for councils, and thus for the LGSCO, to focus on the way in which the decision that she could have her needs met in a care home, was taken, so as to ensure that all relevant considerations have been properly taken account of.
For instance, there could, and we say should – have been specific reference to the Human Rights Act, the MCA, and what the law says when it’s the council who makes a choice NOT to walk away, after a refusal, and not so much the client or the family, who is in the dark about social care law, most likely, at that particular point.
We think that the original offer cannot ethically be made, if it is not lawful. We are not, here, in the realm of arms’ length business people seeing what they can get away with. This is the public sector discharging statutory functions towards vulnerable people, which must matter, in some way, to the development of the law, we think, even though a public body’s decision is presumed to be valid unless and until challenged via judicial review!
We think that if the second offer was actually unlawful as not complying with the Care Act rules on sufficiency, in light of the actual presenting situation where the alternative DP would have to be spent, AND after it may not have been lawfully decided that it was even appropriate to meet the need in a care home or at that quoted cost without a top up – then those are all hugely important issues for the integrity of the social care legal framework.
We would point out first that it is not clear here whether the £692 fee quoted for a dementia nursing home was the fee after residential care charges would have been allowed for, ie against Mrs Y’s pension. That would have made for an expensive care home – £692+£880 = £1572 – but not out of the range of known costs.
It doesn’t seem likely that £692 could be the full cost of a dementia care home in North Somerset, in a post Covid era when people are trapped in hospital beds….
Secondly, it’s not clear whether £2072 was the cost for 24 hr care by the hour x 7 days a week (which would mean £12.33 per hour) – or for say, 2 day time shifts and a night time allowance, and the commissioned fee to an agency, in which case it would have to cover that agency’s profits as well?
The identification of £2072 for the cost of 24-hour care at home is eyebrow-raising, to our minds: no sane council commissioner would ever pay for it, when needed, by 168 hours a week! That is because night time staff on a sleep-in shift do not have to be paid for at the level of the NMW, so the contract with any agency would take that into account.
Alternatively, one’s Authorised Person (even if one lacks capacity for a direct payment) can be funded to employ a PA on a live-in, unmeasured hours basis, for significantly less than the sum quoted than a by the hour rate, even allowing for less than NMW for the night time hours. The Working Time rules apply to a greater or lesser extent depending on the status of the worker, ‘family workers’ being excepted from the daily and weekly maximum rules.
Of course we don’t know whether this lady actually had room for a live-in carer; or whether the attorney was willing to be an employer through stepping up to be his mother in law’s Authorised Person for managing a direct payment in that way. We are not told what the full time cost of care would have been with live-in care.
But that’s the frustration of analysing LGSCO reports.
We don’t think that it is lawful to compare the cost LESS the specific person’s charges in whichever setting (care home or at home, with any owned property either counting or not counting depending on the person’s wider circumstances) by way of care planning.
We know that councils can compare alternative means in cases where there is a professional opinion that either would do, but thereafter, it ought if anything to be the cost of one against the cost of the other, to the council, the person’s financial situation then not falling into account.
So, here, it might have needed a comparison between the contractual cost of a care home capable of being able to cope with the client’s actual needs, suitable for visiting purposes, and with a vacancy, that it was willing to offer, as against the cost of any one of a number of models of care at home.
The state of the law in 2022
It is decided case law that an assessment that does not seek (at all) to elicit the adult’s wishes and feelings and does not take account of their wellbeing and their preferred outcomes for their own life, must be regarded as unlawful.
The statute makes explicit the things that regard must be paid to, although it leaves the weight to be given to the service user’s views in the hands of the professional assessor, subject to public law principles.
It seems to us that if telling the truth, the North Somerset stance made a decent job of that task regarding wellbeing and involvement.
In the real world, both councils and families make assumptions at this point, we find. People think that the wellbeing function and duty means that one gets what one wants and councils think that regardless of wellbeing or impact, everyone must be treated equitably, and get the same, all or some other things being equal, so that they slip into having a policy for cost capping called something like ‘affordable care provision’.
People find this difficult to understand given the focus on individuals and person-centredness; they also find it difficult to grasp the extent to which a council has to mess up its duties, before it even ought to be found to have failed to discharge those duties lawfully, in terms of the role of the Administrative Court.
It is the law that everyone whose needs the council decides it must meet, or should meet, must receive a personal budget as part of the care and support plan.
That’s a statement of the funding to be put in to a care or support plan, and who needs to pay which bit of the whole since most clients are chargeable to some limited or greater extent.
It gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the separate care plan.
A budget is not a care plan or a substitute for a plan.
All care and support plans should have a statement of the budget to be provided by the council for the person in question. A budget is PART of the constituent elements of a lawful plan.
Even when one is content to have a direct payment in lieu of services, there must be a care plan that meets the requirements of s25 – specific provision is meant for the detail needed for direct payment funded care plans.
The personal budget must always be enough to meet the person’s care and support needs.
Our concerns
The point where we must absolutely depart from deference to the investigator’s approach, here, is the permissive stance it takes to the council’s assumption it can simply convert the cost of a care home in to the budget for care at home.
The fact that the liable council’s offer for meeting needs can lawfully be based on the cheaper of two adequate alternatives, masks the complexity that 2 decades of public law cases have layered into what should then happen if a person (or their welfare attorney or deputy) says ‘Thanks but no thanks’.
If the family had sought legal advice they would have been supported to explain what might have been unlawful about the initial decision that a care home could do the job, and also what was likely unlawful about the second decision to offer a sum known to be inadequate to meet the needs at home.
The unclear legal question is how much is enough to count as enough, or as sufficient? Defensibly so, that is? And what are the consequences of an offer being made that is in no way lawful, regarding decided principles, but which nobody knows to challenge because they don’t know how to?
What is rationally enough to meet need of course depends on how much free care or resources from other organisations have been able to be secured by good care planning: councils don’t have to meet needs willingly and ably covered by other people, or needs met by other agencies, such as Health or housing authorities by way of adaptations.
Working out whether a budget is just ‘a bit mean’, or wholly incompetent and irrationally and unlawfully ‘short’, also depends on whether the assessor has bothered to quantify the deficit arising from the person’s inabilities to achieve, explicitly, in terms of how much or how many of this or that input would be regarded as therapeutically, appropriately enough to achieve the good that the Care Act seeks to achieve – or whether they just waffled on vaguely about ‘outcomes’ with no mention of specifics about the time needed or the frequency or the character of the inputs needed.
A) On a wider note, regarding relevant considerations, and lawful process, the LGSCO has made it clear for years in another context – (top ups for accessing preferred care home accommodation from a range of providers) – that a council cannot just take on a needy client when their capital has depleted and conclude that they MUST MOVE HOMES, if no top-up is available. That would be short-circuiting the linear assessment, eligibility and care planning stages of the Care Act, ignore the wellbeing factors in the statute AND it would presume that nobody in this situation has needs that could not be catered to adequately by some other cheaper establishment.
- The professional judgment of the care planner, as to the needs and the impact arising, and what could, would or would not promote wellbeing, including the impact on the emotional and psychological wellbeing of the person if they were to be put through the upheaval of leaving a long term care home placement, and the suitability of the current accommodation as well as any other care home, identified, is needed;
- Due regard to Human Rights (in particular article 8 rights) is needed;
- Consideration of what makes for Best Value in terms of hitting not only the statutory purpose of raising a person above the national minimum eligibility threshold for a tolerable existence, but also the desired outcomes of the individual, is needed;
- Consideration of the POWER in s19, and mentioned in the Guidance, to meet needs that are not eligible as such, is needed;
- Attention to the question of incapacity and then best interests consultation, if the person is unable to say yes to being consigned to a care home, and then DoLS, if needs be, is essential.
All of these must all be covered in the decision-making process before a person can be told that they simply must move out to a cheaper home. Why would it be any different for a person settled in their OWN home, when eligibility has been determined and a care plan not finalised, we would ask?
There is apparently no focus by the investigator as to whether (and if not, why not?) a similar requirement should be expected of staff faced with people who are attached to living in their own home, potentially even needing to live in their own home, by reason of their condition, nor for those 20 prior years of thinking from those top-ups reports from the Commission for Local Administration.
B) “In February 2022 a further assessment decided that Mrs Y needed 24 hour care in a dementia nursing home.”
An assessment is the identification of needs, not the care plan. A care planner made that decision, and there is established law and principle on how that must be done.
There is no focus apparent, there, on whether the position that the council would not meet the needs AT home, was what had really driven the conclusion that the need was for ‘a care home’.
The case law establishes that cost cannot be the only determinant and that the care plan must be needs led. Whilst it’s probably true that the vast majority of people COULD be cared for in either setting, not moving a person from their own home could be as therapeutically critical to a person’s needs as moving them from a self-funded care home to a cheaper council one, on capital depletion.
C) ‘At this point Mrs Y was deemed to be self-funding because of the high service user contribution’.
If one is at home there is no logical legal connection between having any amount of income and being obliged to meet one’s own needs: one can be as rich as Rockefeller and yet still be entitled to have one’s services commissioned by the council, at home (s18(3) of the Act, not true for care home clients). The fact that one’s maximum contribution exceeds the amount by which one would be funded if the council commissioned a package, is irrelevant to one’s rights to have the council DO that commissioning.
D) It is of course acceptable for any council to pay LESS than is necessary, if satisfied that the difference – the shortfall – between what is offered and what is needed is clearly covered through third parties’ own money or voluntarily-provided able informal care. And of course third parties can pay for wants, as opposed to needs, OR if they really want to, collude with the council and even pay for needs, just so as to keep a person going at home. We don’t think that they should be made to, however, on the footing that a council can arbitrarily cap the cost of care that will be funded in an own home, extra care or supported living setting, under the Care Act.
We think that topping ONESELF up in one’s own home, for people who are otherwise chargeable, by reference to their capital (not just to their income as in this case) – raises issues of ‘knowing’ double-charging, on the basis of the existence of capital between £14250 and £23250 (if there IS such capital) because that chunk of savings is already counted in the financial assessment for tariff income purposes. If that is the rationale for the rule against first party top-ups in care homes, we can’t see any reason why the logic would be any different for people at home in their own homes, if they do have liquid capital over £14250 (other than in their own home, of course).
Features B and C, from our concerns above, can even be seen to overlap, because making a person contract for their own care, rather than pay full cost, simply on the basis of their maximum allowable charge exceeding the asserted cost of care, must be all the more non-compliant with the Care Act if the financial assessment is treated as obviating the need for, or the point of, proper care planning in the first place.
The care planning should be coming FIRST, and being done in accordance with public law principles, which involve taking all relevant considerations into account and leaving out the irrelevant ones – one’s financial situation having been conventionally regarded by social care lawyers as irrelevant to assessment, eligibility and to care planning by councils.
There’s an overlap here with the prior care planning problem, because if the asserted cost underpinning the offer of funding is not a lawfully asserted cost, ie because in fact there is no suitable care home, no vacancy in a suitable care home, or only a vacancy if a top up is paid for the only room on offer, then the person at the centre of this process is doubly wronged.
We think that the best approach for a council when considering the decision how it should respond to anyone who could feasibly be cared for in either setting, is to ask itself whether it is at least not inappropriate for any one of a whole swathe of reasons, to meet the needs in a care home? And if not, then which of the appropriate available practicable options when costed in full, disregarding the person’s own financial circumstances, present best value – whilst still meaning that there will be no gap of known unmet needs, unfunded, with the risk of that just being sloughed off onto the family via the mechanism of a direct payment in the name of ‘choice’.
We say that, because how else can it be said that it has complied with the obligation in line with the obligation to consider whether there is any less restrictive means to meet the need, which is explicitly included in the Care Act, regardless of whether the person is capacitated or otherwise?
1(3) In exercising a function under this Part, in the case of an individual, a local authority must have regard to the following matters in particular—
(h) the need to ensure that any restriction on the individual’s rights or freedom of action that is involved in the exercise of the function is kept to the minimum necessary for achieving the purpose for which the function is being exercised.
The irony (given our view as to its illegality) is that if someone is assessed to be able to pay £880 a week, from their income, then the actual net difference between the cost to the council of any care home under that level (£0 because the person would be paying full cost) and the small additional cost of meeting the person’s needs at home, required for funding live in care, if there was room, would be the Best Value consideration the council should have made. That might have been £3-£400 a week, assuming someone could be found.
Conclusions
These are sophisticated legal arguments about a genuinely moot point.
But in the meantime, we think that it’s just not good enough for the LGSCO to expect people with complaints to make out their own legal arguments. The jurisdiction is an investigatory one, not an adversarial one. The son-in-law needed proper legal advice, sooner, in our view.
We think that this third report on this critical topic presents a worrying trend in LGSCO thinking, regarding the issue of cost capping in the name of ‘choice’ and the question of topping oneself up at home.
The others are East Sussex and Bexley, all reports on complaints issued in late 2022.
We’ve flagged this issue up for the attention of Mick King, the current Ombudsman.
The full Local Government Ombudsman report on the actions of North Somerset can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/21-018-856