Decision Date: 3 June 2024
Summary: The Ombudsman found the Council was at fault for calculating the adult’s personal budget based on a comparison with residential care placement costs.
The Council was also at fault for its delay in setting up the Direct Payments. The Council agreed to apologise, recalculate the personal budget based on live-in care costs and backdate what it should have paid.
What happened
This complaint was made by Mrs A on behalf of her mother, Mrs X, who has since passed away.
Mrs X required access to 24-hour care. Between June 2020 – April 2023, she received live-in care at home which was funded through Direct Payments. This was initially put in place during COVID-19 and funded by central government under exceptional pandemic arrangements at that time when hospital beds needed to be emptied rapidly.
During this period, she did not pay any contribution towards her care – it seems because no financial assessment had ever been undertaken. [The rules at the time were that FA staff were redeployed and it was regarded as acceptable to backdate a charge as long as staff had made it clear that there would BE a charge at the time.]
In March 2023, the Council carried out a mental capacity assessment [the outcome of which is not provided within the report] and a review of Mrs X’s care. These processes concluded that Mrs X’s care package was meeting her needs at home and a member of staff explicitly expressed that her view was that she should remain at home with a live-in carer until her needs could no longer be met at home.
In April 2023, the Council completed a financial assessment which found Mrs X was not eligible for financial assistance as she had assets above the upper capital limit.
In June 2023, however, Mrs A informed the council that Mrs X’s savings had fallen below the capital limit. The Council carried out another financial assessment. Mrs A provided the completed forms to the Council on 12 June, stating that she could be contacted for further information but that there may be a delay due to a minor operation taking place for her the next day. Despite this, the Council tried to call Mrs A on 13th June and sent a follow-up email when she did not answer (because she was at the hospital for her operation).
The Council wrote to Mrs X on several occasions each time giving a different amount for Mrs X’s financial contribution to the overall budget. On 13th June, the Council stated the weekly contribution would be £790.88.
On 14th June, the Council stated the weekly contribution would be £570.79.
Following correspondence from Mrs A, the Council sent a further letter on 31st July, stating the weekly contribution would be £377.59.
Subsequently, the council has accepted that “the letters could have been more explicit in explaining the change in the contribution because of additional information being received”.
The Council knew Mrs A wanted her mother to remain at home and it had determined that the comparative cost to meeting Mrs X’s assessed needs in a care home, at the cost of £931.56p per week was the determinative factor for its offer.
Mrs A chose not to accept this offer for her mother [the report does not say what her authority was, if any, in terms of formal power of attorney for welfare or deputyship] and to request Mrs X’s personal budget as a direct payment, to purchase care from a preferred provider.
The Council calculated that Mrs X’s assessed client contribution was £377.59.
The personal budget it was willing to pay was £931.56 (which it would likely pay, net) and there was a top-up required, on top of that, of £448.44 in order to meet the cost of the family’s preferred provider – which was £1380.
Mrs A informed the Ombudsman that the Council had offered three options over the telephone (although she said it only offered two options in writing and the report does not say which two):
- £931 towards the cost of care at home, [this is a capped budget, suggesting that any extra would be seen as funding wants and not needs]
- a placement for £931 at a named care home, [this would be the council’s evidence that there was ONE choice of suitable care home with a vacancy, available at its offered budget, as per the Guidance]
- or a placement at a different care home which the family could top up with additional payments [if they preferred somewhere else, to the one named].
The care provider which the Council contacted about pricing had also contacted Mrs A at home, against her wishes, to make arrangements to assess Mrs X for residential care. The Council accepted this should not have happened and apologised.
Mrs A complained that the Council’s actions caused stress and anxiety, and she did not understand why comparable costs were given for a residential placement and not a live-in carer, particularly since the social worker who assessed Mrs A said she should remain at home as long as possible. Mrs A also complained that the Council had taken 16 weeks to make the first Direct Payment and the care agency was pressing her for payments as a result of this delay.
In response, the Council accepted that there was a delay, stating that there had been a change in the social worker, but that the delay did not impact Mrs A’s care. It also provided the following explanation: “There was a delay in starting the payments as Mrs A was disputing the financial assessment. Mrs A then accepted the offer, and the direct payment paperwork was then progressed; however, it does take several weeks to set up a direct payment. The previous care package had already been closed, so the direct payment process had to be restarted.”
What was found
The Ombudsman found the Council at fault for the way it calculated the personal budget for the late Mrs X, causing both her and her daughter Mrs A, distress and financial anxiety.
The Council wrongly based the budget on residential care costs, which would not have met Mrs X’s needs. Additionally, the Council delayed setting up Direct Payments and contacted Mrs A while she was in the hospital despite instructions not to.
The Ombudsman’s findings were as follows:
- The Council did not act in accordance with the Statutory Guidance; there was fault in calculating Mrs X’s personal budget using residential care costs as a comparison. The Ombudsman stated: “I am not confident that the personal budget which the Council reached was correct, given its methodology which relied on a comparator with residential care.”
- There was an unacceptable delay of 16 weeks in setting up Direct Payments.
- There was improper communication with Mrs A during her hospital stay.
- There was unnecessary and distressing contact from a care home regarding an assessment.
As a remedy, the Council agreed to:
- recalculate the personal budget to reflect proper in-home care costs,
- make a payment of £8969.43 based on the new calculation of Mrs A’s personal budget and issue new invoices accordingly, and
- apologise to Mrs A and compensate her with £500 for the distress and anxiety caused.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
This is one lucky service user and family, in our view – not because the result is not correct, but because it is a report which could easily have gone the other way.
Secondly, Mrs A had already had Covid-funding for live in care for 3 years without paying any charges! Thirdly, whilst we are told that the original package for the live in care had been terminated we are not told what it cost, so it is indeed possible that the new package – the preferred package – to be bought by the family was more expensive than it needed to be.
Fourthly, the model of live-in care – and whether in fact what Mrs A had had was shifts of care with a night time sleep-in or real live-in care with a person only paid for the 10-11 hours they do during the day, because they are paid on a daily average rather than on a salaried basis involving minimum wage rates for every day time hour, is not mentioned. The NHS found ways to achieve that level of care to empty the hospitals, one way or another when it was in charge of Covid-19 funding.
None of this is explored in the report. The superficiality of the analysis does not do the seriousness of the issue, which is rife, nationwide, the justice it deserves, in our view.
If a Council has assessed that an adult’s needs should be met or could only be met by live-in care at home, it would obviously have to ensure that the adult’s personal budget is sufficient to meet needs IN THAT WAY. That is the law, and it has been the law since 1995. It is not lawful for Councils to cap the level of services provided for care at home, or funding for it, to the costs of residential care, overriding professional opinion via a Panel.
The reality is though that Councils employ staff and discourage them from expressing such an inconvenient opinion. Either that, or it is the genuine professional consensus, that the vast majority of people’s needs COULD be met in a care home whilst accepting that that does not mean they should be. The law (public law, that is) says that all relevant considerations must be taken into account and statute law says that there are wishes and feelings, despite incapacity, plus the promotion of wellbeing and a conscientious balancing of human rights to factor in. That is why it has NEVER been legal to cap the cost of home care to the cost of residential or nursing home care at a level of POLICY.
At a level of individual decision-making for a particular person, it is also lawful to take into account the cost of different methods – at least the methods that are not patently inappropriate, for meeting needs.
This is why most Councils tell themselves that what happens next after discussion with the person and/or their family is the choice of the person or their loved ones. For example, the Council’s response emphasised that Mrs A ‘wanted’ her mother to remain at home. But its records were clear that it was the “professional judgement” of the assessing social worker that Mrs X should remain in her own home as long as possible – that would have been on account of the impact of any move, we would suggest, which feature and its evaluation is why we HAVE social workers and regard them as professionals, in the first place.
In fact, what happens next is always the choice of the Council – the commissioner’s choice – because the council either spends the budget or offers a direct payment, which it can only do under the Care Act, even if that rids it of the inconvenient task of meeting the needs with a budget KNOWN to be inadequate.
- if the person is mentally capacitated and refuses the offer of a care home, then the council could walk away, as discharged from its duty; but if it doesn’t want to do that, it is still bound by the Care Act and public law.
- If the person lacks capacity, they cannot be regarded as refusing the offer but their relatives may challenge the suitability of the offer; ordinary relatives have no authority to refuse a lawful offer, acting merely as relatives, although Councils often treat them as such. So, once again, if the authority accepts that the person lacks capacity, it cannot escape being the decision maker.
- If it places the person in the care home, it has to do DoLS, and the s21A route to non-means-tested legal aid tends to mean that anyone with any legal framework knowledge the contends that no proper Best Interests decision has been taken because the person in need has not been trialled at home with a care package that is at least cost-effective for covering the needs at home.In this situation, everyone (except us as readers) knew what the cost would be, but the Council made the other decision open to it, which avoided the DoLS outcome – although it still had to make the decision, itself, to treat the daughter as Authorised Person and award a Direct Payment. This absolves the council of responsibility and risk of liability because it is not meeting the need in an operational sense; the relative is doing that. However, this is where the law on sufficiency of the budget becomes critical, and the LGSCO got that correct – this budget was not based on the correct evidential basis.
- If the person lacks capacity and has a welfare attorney or deputy, that person CAN refuse the offer of the care home and THEN the refusal counts as the person’s own refusal. But even then we find that Councils do not walk away – no doubt for fear of the local press’s attention and they make another offer. That is ultimately therefore their CHOICE, but it must still be Care Act compliant and compatible with public law principles.
In this case, a residential care placement had not even been identified in the Council’s assessment as being able to meet Mrs X’s needs so the offer of a fee commensurate with an inappropriate setting was clearly unlawful, and clearly fettered by the cost-driven policy.
The Guidance does not explain public law properly or explicitly to the sector or the public but it does say this, albeit it that it is opaque and not exactly on the point here:
11.22 It is important to have a consistent method for calculating personal budgets that provides an early indication of the appropriate amount to meet the identified needs to be used at the beginning of the planning process. Local authorities should ensure that the method used for calculating the personal budget produces equitable outcomes to ensure fairness in care and support packages regardless of the environment in which care and support takes place, for example, in a care home or someone’s own home. Local authorities should not have arbitrary ceilings to personal budgets that result in people being forced to accept to move into care homes against their will.
And 10.27
The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining 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 option; but the one which delivers the outcomes desired for the best value.
A Council should be able to show the personal budget is sufficient to meet the eligible care needs set out in the care plan, and that it has not fettered its discretion by setting a ceiling by reference to what it will pay for residential care.
Here, the facts are a little more complicated because of the woman’s coming to rely on live-in care at home which had been put in when there was central government Covid funding to support hospital discharge. It was common, at that point, for the NHS to put in 4 visits a day or live-in care – which usually meant overnight care on a shift pattern, not REAL live-in care, because that would have had to have been consented to, by people who owned their own home. We think that families are being asked to agree to the more full-on model, however, at least temporarily, and we do not think that that is unlawful, if it’s being done on a best interests basis – assuming the State is prepared to pay for people to be employed properly on a daily average, through an agency.
We suspect that the usual additional fee for commission for introductions to people who are willing to live in, in this way, and be employed directly, or for services of this model, provided by the agency on that basis, may be enjoying a resurgence.
The legal test (in our view, which is the only thing we can offer until there is case law determining the point as a matter of law) for a lawful budget and the difference between what is a top up and what is a baseline sufficient personal budget is ‘the lowest practicable minimum cost of meeting the needs’.
Whether a shift model or the daily average works out cheaper, however, is unknown, by us and probably depends on whether the person sleeping there at night really needs a home on a job related tenancy, or has in fact got one elsewhere, and is only doing the living-in on a rotation basis with a licence to occupy.
Councils should also ensure there are no delays in setting up Direct Payments so that there is continuous care and to avoid causing financial anxiety. The Council should address any administrative delays promptly, especially after staff changes.
If you are affected by the issues in this report, please consider asking us a free One-off Question, at a level of principle, here. Our experts’ opinions get posted in the end, which is part of the community benefit which we offer as a CIC.
The full Local Government Ombudsman report on the actions of Buckinghamshire Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/charging/23-012-371
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