Decision Date: 8th August 2024
Summary:
Trafford Council was upheld in its thought process regarding its justification of a budget for care at home which was more than the cost of a care home but less than what the family wanted.
What happened
Mrs Y was discharged from hospital in 2023 to her son and daughter-in-law’s home.
She had physical and mental conditions, and had lived in another local authority area with her husband.
[Nb we are not told when she moved or whether she had been living with her relatives for some time before her hospital admission; the report merely says that she had a package of care funded by her former Council and that her husband who had been her carer had since died.]
The Council’s Stabilise and Make Safe (SAMS) scheme provided a reablement package free of charge for six weeks. Two carers visited, four times a day.
Very soon after her hospital discharge, the Council started assessing her long-term needs. She was eligible for a package and the Council assessed her as lacking in capacity to make decisions about her needs.
The Council concluded that Mrs Y needed access to 24-hour care, and this could be provided in a care home, whilst a nursing needs assessment agreed her needs would be best met in a care home.
The Council identified an out-of-borough vacancy for £645 per week [we are not told why out-of-borough was thought appropriate for Mrs Y’s needs].
It then upped the fee to its own in-borough rate for meeting Mrs Y’s needs.
The family as best interests consultees contended that Mrs Y should be supported to remain at their home with some support by the family.
Mrs X was finding it difficult to care for Mrs Y at night and the family asked the Council to provide day care at a centre five days per week. This was the level of input that Mrs Y had where she’d previously lived.
The total care costs for the requested care would have been over £4500 per week, according to the Council.
The Council explained it could lawfully take value for money and affordability into consideration as well as promoting wellbeing, desired outcomes and preferences.
It said paragraph 10.27 of the Guidance states that when determining how to meet needs, it may also take into reasonable consideration its own finances and budgetary position, and weigh up the total costs of different potential options for meeting needs, costs being a relevant factor in deciding between suitable alternative options for meeting needs.
The Council explored whether the family was interested in using £657 per week as a personal budget to meet Mrs Y’s needs.
The family said that that did not allow flexibility in meeting Mrs Y’s needs but agreed to try and identify a more cost-effective care package which could feasibly meet Mrs Y’s assessed needs.
On that footing, the family suggested daycare five days a week and two care visits a day instead of four, at a cost of £1018 per week.
The Council maintained its view that Mrs Y’s needs could be met in a care home placement more cost-effectively and offered £657 per week as a direct payment, to put towards the cost of her care.
Mr X asserted that the budget offered did not even cover the cost of the carers currently in place or provide any daycare services.
He contended that the Council had blatantly disregarded the Care Act in its assessment in leaving unmet needs out of account; also that there had been significant delays in replicating the previous service Mrs Y had received, before her move, which meant that the family had been left to provide all the care for Mrs Y, which had counted for nothing, as far as he could see. The complexity of her needs and culturally appropriate care had been ignored.
The Council considered Mr X’s complaint as an ‘appeal’ against its decision.
Following another best interests decision, the Council offered an increase in Mrs Y’s personal budget to £825 per week. This was calculated based on the four visits a day that it was prepared (now) to be recorded as judging as essential, in order that Mrs Y’s needs be at least adequately met.
The Council said the increased budget was akin to the cost of the home care Mrs Y was assessed as needing. It had taken account of Article 8 of the Human Rights Convention.
It reconsidered the budget one more time, refusing to increase the budget further.
The Council said the family could use this budget flexibly to meet Mrs Y’s needs but that any care in excess of the personal budget would need to be paid for by the family.
It ultimately agreed to “match” the level of support with the amount of care that had been provided at home by the SAMS service.
When the Council eventually completed the financial assessment, her assets were above the capital threshold and was thus required to pay for her care costs in full [nb we are not told whether her family knew of the level of her assets or had any legal authority to manage her money.]
On the topic of respite, Mrs X complained she had had no respite and stated it was difficult or impossible for her to exercise or attend to other matters such as medical appointments.
When the LGSCO asked, the Council confirmed it had made a referral for a carer’s assessment, and it provided information about carer support. The Council had also arranged daycare provision for Mrs Y for six weeks, while Mrs X recovered from an operation.
On the topic of continuity of care, Mr X asserted that continuity of care when Mrs Y moved to their house had been ignored, because the type and amount of care was different and care was not actually implemented in a timely way.
What was found
The Council considered Mrs Y’s needs and the care and support required to meet those needs and its view was that a care home would meet those needs, including needs for social inclusion.
Mr and Mrs X disagreed and this wish was considered, but the Council had the right to maintain its view that Mrs Y’s needs would most cost-effectively be met in a care home.
The Council was allowed to take account of the cost of provision under the legal framework.
It reconsidered the matter fully and made a best interests decision, taking account of the family’s views and the points they raised, significantly increasing the personal budget and offering flexibility, to meet Mrs Y’s needs.
There was no fault there.
Ultimately the council paid for the provision it thought was needed, and the rationale for that was the 4 visits a day that the reablement team had provided.
There was no apparent fault by the Council in the way that it responded to Mrs X’s requests for carer support [see below, as to why we have to disagree].
On continuity of care, the LGSCO found that the Council had completed an assessment, in fact, but the family disagreed with the content. The Council then took steps to consider the family’s request for further care and its appeals regarding the matter. There was no significant avoidable delay here.
It appears that the LGSCO investigator accepted that Council’s stance that the reablement package of care enabled assessment but it could not be there at night and that the team’s offer to assess Mrs Y was rejected by the family because of its own determination to keep her at home. The Council declined to compare different packages of care from other local authorities as ‘all authorities provided different interventions and services’. In addition, Mrs Y’s needs may have changed following her stay in hospital. It put the delays down to the family’s request for continued support at home.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
Trafford is SO lucky to have been able to come through this report, without a finding of fault, in our view, and in our view, they only just made it.
Here is why:
It is perfectly legal to do what the staff did and compare options for meeting needs. Very few people NEED actual care 24 hours a day; they should be considered for CHC status, if they do! But access to care, if one needs it, during waking and night-time hours, is how the need should be expressed, and that need is most cost-effectively met in a care home. However, there may be countless other reasons why a person ought not to be found, after an individuated person-centred assessment, to be able to have their needs met in a care home, given that the decision in the round needs to
- Have regard to the need to promote wellbeing, especially with regard to emotional and psychological well-being and the suitability of their existing accommodation, as well as that of any that might be offered to be arranged by a Council;
- Take account of wishes and feelings, even if the person lacks capacity;
- Comply with the need to balance Article 8 rights against the need to save money for all the council’s other duties under other functions and to others it must consider
However, if the person is offered a care home, and they or anyone with lawful authority to speak on their behalf says Thanks but No Thanks – no to a care home, then the council must consider whether the person is refusing the offer of care with mental capacity, and if so, what to do about that, but also if not, what to do about that. Here the woman lacked capacity; her relatives were not authorised to refuse on her behalf, so in fact the council was the only decision maker regarding the package it was prepared to offer. It appears to have conscientiously weighed the person’s human rights in the equation, and been explicit that it would not countenance paying £4500 a week of public money [for which of course, its citizenry should be grateful, because it would mean the council tax would be very likely to go up.]
But in making that decision, it would still be bound by the Care Act and that is where the Ombudsman goes badly wrong, in our view, no doubt inadvertently for want of knowledge about community care law, which is what in fact governs this situation, and not a mere decision about ‘fault’.
Trafford did well not to stick to the £657 first offered as the, the cost of a care home, although we can scarcely believe that there is such an offer available to any council in the current climate. In the situation it was faced with, the care home cost was of no relevance whatsoever: Mrs Y was going to BE at home with her relatives.
It may seem bizarre that someone who was first thought to have needed access to 24-hour care could suddenly have their needs met by 4 visits a day but the lack of any further information or any intimation of a legal challenge suggests that the family did ultimately appear to accept that it was enough. One gets the impression that it left Mr and Mrs X carrying a load that they were not willing to carry but in legal terms, if they did not take it further, then that tolerance of the situation provided the council with the evidence that it was in fact bearable, overall.
The £825 offer was not arbitrary, in the end, and that is what makes this example a lawful one. Trafford had a good enough rationale for sticking to £825 as the cost equivalent of the commissioned reablement service, which it in fact continued to provide, as far as one can tell. If it had been judicially reviewed, it would have been obliged to justify why that was enough to meet needs that had been assessed, but which were not being willingly and ably met by the family. And then it might have come a cropper.
On continuity, we are shocked that the Ombudsman does not make more of the DUTY to match the old care plan in the case of a voluntarily made move out of the area unless one has explained what one’s justification is for not so doing. One gets the impression here that the family may have moved Mrs Y into their home when her husband died without knowing anything about the care system (which may have been an Advice and Information failure on the part of one Council or the other, but it is not possible to tell); and then when she had to go into hospital, it brought matters to a head and they realised that there should have been care set up before the move, IF the move was planned in the first place, and both the old and the new Council were kept in the picture.
The continuity obligations which the Ombudsman’s investigator could have explored, are in s38 of the Care Act here and here.
The obligations to explain a change from the old to the new plan in the new authority are found in s37 of the Act, where an assessment and care plan have already been done by the new authority, BEFORE a person’s move.
But even though that might not have fitted the facts in this scenario, public law principles required Trafford to explain itself at the TIME it mattered, not months later when the complaint made had been rejected and the Ombudsman got involved.
On respite, we have to disagree with the investigation outcome, because of the impression the report gives that the family carers’ stance on not being able to carry on was still getting mixed up in the investigator’s mind with the outstanding request for a Carer’s Assessment for support needs. In fact, the law is quite clear that regardless of a request for a Carer’s Assessment or the outcome of any that has been completed, the service user’s OWN package may need to be enlarged specifically so as to cater for the reality that nobody’s carers can be deemed to be willing and able all the time; the carer can stop whenever they like, and the Council is bound to make a rational decision about what the eligible assessed needs require by way of covering the gap.
The Ombudsman could very easily have made that point and relied on the Croydon (P) case to drum out the message to all councils. So, this was a missed opportunity on the part of the Ombudsman, we have to say if the investigator was aware of the Administrative Court’s decision.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Trafford Council (23 011 875) report.
If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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