In a complaint decision involving Cambridgeshire County Council, the Ombudsman appears ready to give up on using case law and established legal principle to inform its approach to what does or does not amount to fault in the context of care planning.
It has also inexplicably ignored several aspects of its own reasoning, from previous complaints reports from an earlier era, as well as decades of adult social care law.
We’ve offered engagement, privately, with the organisation’s director of investigations, which has been declined. So, we don’t really know what to say. We find it hard to envisage running a legal framework and analysis business in the social services field for the community’s benefit, if the LGSCO itself is not concerned about the impact of poor quality reports and the importance of consistency, within its own body of work.
We just hope that the inconsistency is explained by information not included in the reports themselves. But even that sort of omission represents a weakness in the output – output which the taxpayer is funding, and undermining everyone’s faith in the rule of law. Given that care planning is key to hospital discharge as well as for the client cohort being supported at home, we would have hoped for a more positive outcome, because we have consistently celebrated the Ombudsman’s contribution to practice in this field.
What happened
The Cambridgeshire complaint was an unusual one apparently about disregarding heating costs as disability related expenditure. It arose from the Council’s failure to enquire about additional evidence of the person’s expenditure on heating. However, there was an underlying deeper issue: the council had rejected a complaint about its refusal to fund the full cost of live-in care, given the cost of a care home in the local area.
This was not criticised by the Ombudsman. The effect of this is that the report explicitly supports the legality of a council’s cost-capping of a budget for care at home, by reference to the cost of a residential care home, in disregard of a collection of public law principles.
The facts
Ms Y, who is in her late eighties and has dementia, lived at home with support from her family and via care arranged by the Council. She had been getting 4 visits a day, and on top of that, either she or her daughter received a 6 hours-a-week direct payment for a sitting service, so that her daughter could have a rest or get out of the house.
Over time, the family arranged additional paid care on top of the commissioned package, resulting in significant debts when Ms Y’s savings ran out. Some of the debts Ms Y owed were previous client contributions toward the earlier sitting service direct payment.
Ms X, who held a power of attorney for Ms Y, argued that the Council’s charging decision – which ignored debt to the agency they’d chosen to top up care with, let alone debt to the council, caused avoidable distress and financial hardship.
With regard to its care planning function, on a review, in January 2024, Ms Y’s mental incapacity regarding decision-making about her care was confirmed and the social worker’s view was that it was in Ms Y’s best interests to remain at home with care.
Later on (the very next month) she was re-assessed (by which time she was receiving 4 double handed visits a day), and the Council overtly capped Ms Y’s direct payment to the equivalent cost of a care home, leaving the family to pay the difference for live-in care they were funding.
The indicative (estimated) PB was £712 a week.
The report said that this is what the care plan said: [but it must have been a draft plan, given what happened later on…]
- The Council would provide a DP equal to the cost of a dementia care home. This was to be used to cover the cost of home care towards meeting Ms Y’s 24-hour care and support needs.
- It was unlikely the DP would be enough to cover all Ms Y’s needs. Ms X or another family member would need to cover the shortfall.
- If this was not agreeable, the Council would need to consider how Ms Y’s needs could be met.
There is no detail as to what happened next for the actual meeting of need. By June, however, a review recorded that Ms X was applying for equity release on Ms Y’s home and this would release funds to pay for additional care. It seems that the Council knew that Ms Y’s brother slept overnight at Ms Y’s and she (Ms X) worked from her home every day since Ms Y could not be left alone. Live-in care with the agency was eventually contracted for at a weekly cost of £1100, the family paying the top-up for the difference of several hundreds of pounds, from July 2024.
Ms X complained to the Council and, unsatisfied with the responses, escalated the matter to the Ombudsman.
What was found
The Ombudsman found no fault in the Council’s refusal to fund the full cost of live-in care, so we have set out below for why we disagree that it “followed statutory guidance and case law” in these areas.
The key part of the decision
The investigator said that the Council was entitled to cap Ms Y’s personal budget at the cost of residential care, as it is only required to meet eligible unmet needs, not family preferences.
The report reasoning adds that Councils can balance individual needs with overall budgetary responsibilities and consider cost-effectiveness when deciding how to meet care needs. The Council had considered Ms Y’s and her family’s wishes, and was not obliged to fund the more expensive option if a suitable alternative was available.
What we think…
We think that this decision is wrong in law for overlooking several stages of the reasoning required of social work staff, and for departing from the Ombudsman’s own body of work on the topic, of which current investigators must surely be aware.
There is no word about the significance of the previous best interests finding from January 2024 about the lady needing to stay in her own home for as long as possible, and why the council changed its position on that point.
A practitioner’s Best Interests recommendation to the funding panel or other decision-making body is not the same as making a Best Value budget sign off decision – a best interests recommendation need not be the one that is finally made by a council under the Care Act as long as it takes account of the fact that it is regarded as the least restrictive way of meeting the person’s needs, alongside all of the other public law duties and considerations that must or can be factored in, including the best use of the council’s resources.
However, rejecting any practitioner’s evaluation would require a proper justification from senior decision-makers and would have to be articulated transparently, according to the Guidance, and if challenged, in writing.
In all the Ombudsman’s other reports which we can find, addressing cost-capping, the best interests decision of the council has been a key factor in the conclusion that the council was in breach of the Care Act to fail to meet needs properly in the person’s own home.
The legal right of a council to take the cheaper of two adequate means of meeting an eligible unmet need has long been established. But there has never been a case that establishes that the cost of a residential care home has any legal relevance whatsoever, to the lawful identification of a budget for meeting need in one’s own home, by the lowest practicable defensible means, if the actual cheaper option has been rejected.
Cambridgeshire does not appear to have regarded this woman as requiring a care home as the only feasible way to meet her particular needs, and was not apparently planning on enforcing any such move under the DoLS authorisation system. So it seems that Cambridgeshire was comfortable with the prospect of the woman remaining in her own premises, as a matter of fact.
If that is the case, (ie more than one appropriate way of meeting the needs, one being more expensive than the other) the law is that the next stage of the care planning process must proceed as follows. Thus for the decision to be proper and without fault, the investigator should have explored what actually happened in the minds of the decision-makers, calling out any actual omissions for the good of councils and the public.
- Is the more expensive of the two means to meet needs, still potentially the best value option overall, given all the OTHER relevant considerations that a council (acting properly) should know that it is bound to take account of?
- What would be the cost of the lowest practicable means of defensibly meeting the person’s needs via home care in this actual setting, after all assets and strengths-based work had been done and solutions identified?
- Assuming that the facts make it clear that live–in care would be more expensive than a package of care designed to provide for the person’s needs to an appropriate standard in the first place, then it is at least arguable that the difference between the cost of live-in care and say some agency shift-driven care with family input can be regarded as a mere preference and thus as a trigger for a top-up/private additional payment. One can however only assume that live-in care would have been more expensive, of course, because, sometimes, live-in care can actually be cheaper than shifts, if the remuneration of a person who is genuinely living at the person’s home is worked out on a Daily Average basis (ie through REAL live-in care, or even the employment or provision of a pair of people doing live-in care on a rota for several weeks on and off, plus breaks) given that it avoids paying NLW throughout the night. There is no discussion of the nature or structure of the particular live-in care that the family found, in this report.
- Since the mere fact that the person has granted a power of attorney to a relative cannot be determinative of her capacity for decision-making as to a Care Act offer to meet need, and the person might not lack capacity to make that particular decision, has the council told the person everything they would need to know, if they are to be regarded as properly informed of the basics of the consequences of refusing a care home? So the lowest practicable minimum defensible cost of meeting the person’s real needs and the risks it would involve, if they were to stay at home, and the cost implications of that option, because of a different charging system being in play if staying at home?
- What would be the consequences of the confirmation of lack of capacity for who is obliged to be the decision-maker regarding the refusal of a care home, even assuming all the above steps have been taken and the cost of the alternative lowest practicable defensible minimum have been able to be understood by an incapacitatated person’s circle of support? Since this person lacked capacity to make a decision to refuse residential care, did anyone else have actual lawful authority to make the decision to refuse it for her, as her statutory agent?
- Would a power of attorney holder need welfare power to refuse a residential care home placement or is a finance power of attorney enough, in a situation where the finance power holder is not in control of sufficient money for the package and needs the funding to be State funding in order to meet the needs at all? We think welfare power is needed to make that sort of decision about risk, and that that is a different and logically prior question to whether anyone coming forward to manage a direct payment should be approved as a person’s Authorised Person to manage that form of a personal budget.
- If the facts are that nobody with welfare authority exists (and no welfare-related form of authority was mentioned in this report, only a financial power of attorney) then at the very least, the person’s circle of support role is to be consulted, because they are interested in the person’s welfare and thus entitled to be making best interests representations. In that situation, the decision is still one that the Council is obliged to make as the council acting under the Care Act, having listened very carefully, and subject to all the other legal rules as to what it then has a duty or a power to do, if it cannot regard the individual owed the duty, as actually making a choice to refuse a care home.
This, by contrast, is what the Ombudsman’s investigator said, in this report:
“I do not consider it to be fault though, because the best interests decision paperwork indicates the family who hold power of attorney had decided Ms Y would have live-in care and so the placement option had been considered and rejected by the family. There would be little point in officers securing a care home placement which would be rejected.
As a council must meet a person’s eligible unmet needs, we would usually expect it to have evidence that it offered a placement in a dementia care home to Ms Y at the time it reviewed her care needs and decided she required 24-hour care. In this case there is no evidence the Council offered the family a care home placement.
It is open to the Council to decide how to meet needs and it has discretion to choose between available options as set out in Section 8 of the Care Act 2014.”
The reason this careful attention to the thought process matters so much, with regard to legal principle, is this: if the person owed the duty has still got capacity, and has been properly informed as to the level of budget that would be required to meet the actual needs properly at home, and has nevertheless gone on to refuse a care home, then the council is entitled to take the refusal as the discharge of its duty, and no longer to regard itself as under any obligation to make any further offer.
This is the legal consequence of autonomy and the acceptance of Care Act services not being something that a council can force on anyone, without taking further steps with regard to challenging their claim to mental capacity.
But if an offer of a care home is one that is simply either senior management policy- or internal practice-driven and not based on the individual’s own individual needs, wishes and feelings, wellbeing and human rights, nor on any regard for the legal principle as to who is the decision maker under the law of capacity and the Care Act, then it is not a proper offer anyway; it is no more than an unlawful fetter of the care planning decision-making function, and an unlawful disregard of human rights.
Even if this Council had found a suitable home with a vacancy, and even if it had been a home that was prepared to take the fee without a top-up to improve upon the Council’s own standard fees, and even if the financial power attorney holder had had welfare power of attorney as well – and had refused a formal and appropriate lawfully made offer, this Council did make a further offer.
And that can only mean that the Council was still bound by the public law requirements of sufficiency and non-arbitrariness.
We think that the law under the Care Act is that it does not then have the option of foisting a capped cost budget, based on an unaccepted means of meeting need on to the person, in the name of the person’s ‘choice’ -given that its ongoing stance, if it chooses to seek to persuade the person or family to accept anything further from the Council – then arises from its own choice to continue to offer to meet the needs it has assessed. The service response is not the assessment of ‘need’ – the need is the deficit and the service response is a separate part of the thinking required.
Rationality is the public law legal principle that comes to the fore, here. The cost of a care home does not bear any objective logical relationship to the cost of meeting needs at home – regardless of whether that might be achieved through home care commissioning, on shifts from an agency, sending in staff on a rota including overnight, or through a direct payment at that capped level for an employee to be taken on by a family member.
The whole idea of s25 of the Care Act, setting out what must be in the statutory plan – and the interpretation and elucidation of that section in the CP v NE Lincs case, is that the plan must identify how the money allocated will actually meet the deficits identified during the assessment, and reduce the impact of those deficits to wellbeing, to something that is tolerable in a civilised society, instead of significant.
The Care Act 2014 (Section 26) requires budgets to reflect the “cost to the local authority” of meeting needs in the setting that has been care planned FOR (home), not an alternative and now known to be hypothetical setting (a care home).
Conclusion
The report raises concerns about procedural rigour and the legal basis for capping home care budgets at residential care rates. The Ombudsman’s original decision warrants revision in three key areas, in our view.
The Council’s decision to peg Ms. Y’s home care budget to residential care costs lacks explicit statutory or case law authority. Councils may consider cost-effectiveness only after identifying viable appropriate adequate suitable options to meet eligible needs. The Care Act does not equate “cost-effectiveness” with “residential care rates” for home care budgets and in fact paragraph 10.27 detracts from any such position and hints of the dangers of making any such decision.
The Council does not appear to have considered whether residential care was the only practicable alternative to live-in care; nor to have explored and shared intermediate options (eg agency shifts) that might have met needs at a lower cost than live-in care but at a higher cost than residential care.
Ms Y’s lack of capacity (confirmed in January 2024) potentially shifted decision-making responsibility to the Council under the Mental Capacity Act 2005 subject to the nature and scope of the family member’s power of attorney.
While the family’s preference for live-in care was considered, the Council apparently:
- Relied on a flawed binary choice between live-in care and residential placement, without assessing whether lower-cost home care models could meet needs or identifying whether risk-taking might in this case be able to be lawfully undertaken by someone with a welfare power of attorney, or justified in the professional view of the Council’s own staff, after consultation of best interests consultees, because of the possible importance of the own home setting to Ms Y’s wellbeing and happiness;
- Failed to justify in public law terms why residential care costs were a rational benchmark for home care budgeting, rather than calculating costs based on actual home care options (eg. agency rates for 24/7 care).
By capping home care funding at residential rates, even if it did so in this instance in the context of an individual’s budget (and not merely at a level of a generally applicable policy, which is clearly unlawful under decided caselaw and other Ombudsman’s reports) the Council effectively predetermined the setting without proper analysis, undermining the Care Act’s personalisation principle.
The care planner’s reasoning should always acknowledge:
- The lack of legal authority for using residential care costs as a home care budget cap.
- The Council’s duty to explore and share detail of cost-effective home care alternatives – before regarding a person as lacking in capacity and before expecting the person to make representations as to which might be regarded as better value overall, if there is more than one option.
Our concerns about quality control at the Ombudsman’s investigations and reports
This report highlights systemic tensions between potentially challengeable cost-containment policies and Care Act principles that are allowed to be applied in individual cases, necessitating clearer guidance on lawful budget-setting practices from the Ombudsman, if it aims to be a source of useful learning to the public and to the sector.
The assertion that the Council was entitled to act in this way “under case law and paragraph 10.27 of Care and Support Statutory Guidance” is not justified by any authority that we know of, so this is a dangerous turn for the Ombudsman’s service to have taken, when it has so clearly outlawed cost capping in its own body of work, as referenced below.
The particular importance of ambiguity around the law in this context is the extent to which it will likely be affecting hospital discharge decisions. If a person awaiting discharge is not selected for NHS funding such as interim/stepdown or D2A funding – so that the local council will know that there is little prospect of long term NHS funding for that person, it must not use an equivalent cost/affordable care budget capping policy to constrain the staff’s recommendations about the setting and flavour of the care package that the council would regard as meeting the person’s needs, in advance of proper person-centred work.
If that starts to happen, the Care Act will have been stripped of all value.
Is it fair to expect the Ombudsman’s investigators to know about the law?
we think that the only answer must be YES! This is not law that is regarded as still developing. It is not as if commentators have only recently come to this subject matter as important. We have been writing about cost-capping for 25+ years in one guise or another, because it’s been going on since 1998, quietly.
A discussion of it, and all the relevant case law going back to 1996, via a webinar recording, could be purchased from CASCAIDr (when we were a charity) in 2017 and we broadcast that webinar on the matter, before the Equalities and Human Rights Commission took up arms against over 30 CCGs for proudly presenting their Best Value cost capping policies on their websites, which were then taken down…
This link here represents an overview written in 2017 of how the law was developing in this context and is freely available on this site.
We’ve also flagged up previous reports in which we thought that there was cause for concern: for instance – Manchester ICB was allowed to defend its decision to offer a cost capped care package of 42 hours a week to a CHC patient, on the basis that it was safer, for any needs in excess of that level to be met in a care home.
We were moderate in our criticism at the time, saying that the report repaid study for what it did not clarify and for the facts that it did not spell out, including whether the man ever WENT home from a nursing home.
In the Buckinghamshire report, in 2024, 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 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):
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].
£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]
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.
In Croydon, in 2022, the council was called out for appearing to place financial considerations before wellbeing with the statement that it did not provide 24/7 care.
The investigator was trenchant in the summary of the evidence:
47 In this case, the Council appears to have initially taken the view that Miss X’s needs could not be met because they occurred at night, and this was not a service the Council provided because it was too expensive.
48 This is evidenced by the comment made in the case notes that “the Council cannot fund 24 hour care in a person’s home”. It went on to say such care could only be provided in a residential setting.
49 The Council seems to have viewed Miss X’s need to be turned at night to the equivalent of a 24 hour care package. It said the hours offered were enough for her to be able to manage. This demonstrates the Council’s focus was on budgets and not Mrs X’s needs or wellbeing.
52 This approach effectively capped the available budget for home care to that of a residential placement. Blanket policies of this nature are unlawful. It amounts to a fettering of the Council’s duty to meet an assessed need. Councils cannot simply take the cost of a residential care home as the benchmark figure for other care packages. In this case, such an approach would leave Miss X with little option of accepting residential care, or a reduced care package.
We applauded this approach: “Making a finding that went against the apparently current position of the council is not overstepping the role of the LGO if it cannot be satisfied that there WAS any effort to address the evidence: it is fault to fail to act in accordance with established legal principles.”
Whenever we have spotted an Ombudsman’s decision that we think is consistent with the law, we have celebrated it, with words such as this – after the decision involving Sheffield in 2019:
“This is one of those powerful Ombudsman’s reports which make it clear that the LGSCO’s organisation has become the rational remedy to which to resort, if one’s council has been caught acting in disregard of the legal framework, whether inadvertently or cynically, and deliberately.”
In our commentary on that report we said “The Care Act guidance makes it clear that just because a need could or even ‘should’ be met by another organisation, it’s not acceptable to just assume that it will be, or to send the client him or herself off to make that happen. There is the possibility of interim services as long as they are not beyond the scope of the Care Act, and also the duty of co-operation under the Care Act – a mutual and reciprocal duty in a specific situation to require another partner agency to do something or else explain why NOT, in writing. This is a really effective fillip to good administration and joint working (- but only if public officers will actually use that duty (section 7 of the Care Act, please note).“
The most expensive consequence for a council for getting this wrong, which we of course also celebrated, can be found in the Ombudsman’s Merton report – some £43K of self-funded care fees was awarded by way of restitution after a woman was told she could have only 23.5 hours of care a week – a sum that is clearly related to the cost of residential care.
The best report from the Ombudsman to date, for legal nuance and sophistication, we think, is this one, where Trafford got it RIGHT, by taking its resources into account when offering care at home, but NOT by simply capping the cost to the care home fee it first alighted upon!
In the report into East Sussex Council cost capping with regard to a s117 aftercare client was considered by the Ombudsman.
A woman had been assessed, and provided with a live-in carer. She had lost capacity and now needed help and supervision even to stand, move around, take medication, dress, receive personal care, eat and stay safe, whilst believing that she was still independent. The s117 team thought that moving into a care home would be severely detrimental to her mental wellbeing given her mental health history, and not in her best interests, and that care at home would be the least restrictive approach.
Later on, after the miracle of Covid funding ceased, the Council and ICB (Integrated Care Boards) agreed that the live-in care amounted to section 117 aftercare. Their s117 team decided it would only contribute £600 a week. This was because someone decreed that Ms M’s needs ‘could’ be met in a care home specialising in dementia, and £600 per week was the average cost of a room in such a care home, they said.
The Council re-assessed Ms M’s capacity and found her to lack capacity to make decisions about her care needs, albeit emphatic she would not go into a care home. The following day, a best interests meeting was held and it was agreed that support from a live-in carer was in her best interests and moving her into a care home would be more restrictive, but that they would still only pay the first £600.
Ms M’s daughter wrote to the Council raising concerns about the necessary payment she was making to cover the shortfall in care costs (£395 per week). The Council replied stating that it was the family’s ‘preference’ to receive care at home for Ms M and that the family had explicitly confirmed that they would be able to fund the difference between the normal care home rates and live-in carer rates for around 2 to 3 years.
The LGSCO found both East Sussex County Council and ICB were at fault causing injustice to Ms M. The Council and ICB were at fault for failing to pay the full cost of Ms M’s s.117 aftercare at home without:
(i) proper review of Ms M’s needs in line with the law and guidance;
(ii) proper justification (evidence) that her needs could be met elsewhere and/or at a lower cost;
(iii) a documented CPA care plan stating what her aftercare needs are and how these will be met (or an alternative care plan giving a good reason as to why the CPA Process should not be used).
Not only did the best interests decision clearly state that it would be detrimental to her mental health and increase the chances of readmission but also there was no evidence provided of available care homes that could meet Ms M’s needs, reduce the chances of readmission, and provide the same level of supervision she received at home, for the asserted sufficient sum of £600 per week.
Furthermore, the Council had acknowledged to the LGSCO that one of the reasons Ms M was receiving care at home was because it recognised that her wish to be at home engaged her right to liberty and family life (Articles 5 and 8 of the Human Rights Act, respectively). Given that she lacked capacity as to her health, care and residence (article 8 rights), they had not explained how interfering with these rights (placing her in a home) would be defensibly justified.
The Ombudsman was spectacularly right on all those points, albeit there were other issues with the further reasoning of the investigator as to the specific problem of topping up at home, under s117.
In the Havering report, in 2019, the Council was aware none of the agencies on its provider list provided live-in care at the Council rates for care AT home. The Council said it allocated Mrs Y “its standard rate for live-in care”. The personal budget was insufficient to cover the cost of the care. Even in this scenario the investigator rightly found that this was fault and not in accordance with the Care Act or Statutory Guidance.
This was not a case about a council saying ‘You can’t stay at home and have live-in care’ – as is the line most councils take, if a care home would be cheaper. It was a case about a council being positively willing to fund the purchase of a live-in care service, which is wholly to be applauded. But that is not any the less unlawful , if the rate it is then going to offer is standardised, as if the council can actually set the rate, instead of responding to it; nor if the rate is not backdated to the point when the expenditure was incurred, when the failure to conclude Care Act proceses properly, was the council’s fault.
We were so pleased with the contribution made by this particular decision, that we said this, at the time:
“We think that the LGSCO is fast becoming a viable alternative to a Tribunal or the Administrative Court, given the amount of illegality that it is now dealing with, under the guise of ‘fault’ and remedies for ‘injustice’.
We think it’s time to name and shame councils specifically in our write-ups of these reports, for acting unlawfully, irrationally, in terms of the evidence available to them, in breach of statutory duty, in breach of the rules of procedural fairness, for ignoring the Guidance without good reason, for fettering their discretion and for ignoring human rights (when that is appropriate criticism), instead of just saying that the council’s staff were ‘at fault’!
But that is the LGSCO’s role. When the law is clear, we feel it must now be recognised to be ‘fault’ when a council’s senior management doesn’t know the law or see any advantage in training its independently regulated staff to keep up with it. Before long, it may even be misfeasance in public office, for which no manager can be insured or indemnified by a council.”
But it looks now as we can only IMPLORE the Ombudsman to bring in some consistency checking and legal framework training for investigators, so as to keep up the good work!
For anyone who is really interested in reading into this topic further, here are the references to other reports from the Ombudsman and case law mentioned above, on this topic:
1. Sheffield was called out when the social worker told Mr D that night care could not be funded as this would lead to the cost of Mr D’s care package exceeding the maximum ceiling of what was usually paid out for care.
After realising the mistaken statement, the Council clarified there was in fact no ceiling on the funding for Mr D’s care package. The Council said that the comment was retracted as soon as the manager became aware. However, it expected him to reduce his night care needs by approaching other services. He agreed to explore options and contact his GP but said he was not willing to over-medicate or use continence pads as he was not incontinent. He asked the Council to provide an emergency package of night care whilst he awaited the outcome of the continuing healthcare funding assessment. The Council agreed to fund night care three nights a week for three months, conditional upon Mr D co-operating with the assessments, saying he had not done so before then.
When he was found ineligible for CHC the Council continued to provide night care three days a week, reviewing this provision every month or so. The Ombudsman said that the Council should have met Mr D’s eligible needs whilst these assessments were being done. If Mr D’s needs changed following the involvement of other services, the Council should then re-assess him and change the care package if necessary. By not doing this, the Council was at fault.
2. We wrote this here in the above link about the early case law on cost capping: “Case law (KK v STCC, 2012) holds that capacity assessors should not start with a blank canvas: ‘The person under evaluation must be presented with detailed options so that their capacity to weigh up those options can be fairly assessed”
The person owed the duty in the KK case was found to be clear, articulate, and betrayed relatively few signs of the dementia which afflicted her. She understood that she needed total support and carers visiting four times a day. Whilst she may have underestimated or minimised some of her needs, she did not do so to an extent that suggests that she lacked capacity to weigh up information.
The judge in the Court of Protection on a DoLS challenge said this, in that case:
- I find that the local authority has not identified a complete package of support that would or might be available should KK return home, and that this has undermined the experts’ assessment of her capacity. …The statute requires that, before a person can be treated as lacking capacity to make a decision, it must be shown that all practicable steps have been taken to help her to do so. As the Code of Practice makes clear, each person whose capacity is under scrutiny must be given ‘relevant information’ including ‘what the likely consequences of a decision would be (the possible effects of deciding one way or another)’. …That requires a detailed analysis of the effects of the decision either way, which in turn necessitates identifying the best ways in which option would be supported…..In order to understand the likely consequences of deciding to return home, KK should be given full details of the care package that would or might be available. The choice which KK should be asked to weigh up is not between the nursing home and a return to the bungalow with no or limited support, but rather between staying in the nursing home and a return home with all practicable support. I am not satisfied that KK was given full details of all practicable support that would or might be available should she return home to her bungalow.”
To our mind, that means no POLICY that ‘this is what will always be done or decided’ can ever be lawful, because it must all be subject to a professional decision on the person’s needs at the outset – and what would be therapeutically effective and not deleterious or harmful, as a means of meeting needs (and promoting wellbeing in the specific ways mentioned in the Care Act, if this is the council rather than an ICB that we are considering…)
JUST having a general policy that it will usually or normally be the body’s expectation that the cheaper setting will be the one offered, is not safe, either, in our view. Not without examples of exceptions, and some proof that exceptions ARE in fact made – and that the staff know that they have a critical role in determining whether a person is even one who can be regarded as able to be cared for, defensibly, other than in their own home.
Having any kind of a clear cost cap, as a policy, whatever it has been set by reference to, would mean undermining the care planners’ view about managing impact to wellbeing, or even a best interests decision about an appropriate service setting.
3. In the Buckinghamshire report 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.
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 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.
4. In yet another Birmingham report, in 2024, the fault was specifically with regard to improper addressing of night time needs.
There was medical evidence which indicated Mrs Z could need up to 10 bowel movements per day. In hospital, the position was that Mrs Z was managing with incontinence pads, but in hospital she would have been able to summon help to transfer to a toilet or a commode.
A care package was arranged, providing four daily visits from carers to assist with her basic needs. However, the Council did not provide any night-time care, despite acknowledging that Mrs Z’s bowel movements were unpredictable and that she required two carers for safe transfers to a commode that she had in her bedroom.
The Council concluded that her night-time needs could be met appropriately using incontinence pads, based on motion-sensor monitoring, conducted after her discharge from hospital.
The assessment had detailed her use of the commode at night and noted the challenges posed by her condition. However, it failed to explain how Mrs Z could safely transfer to the commode or address the suitability of relying on incontinence pads, given her bowel disease. Additionally, the Council’s motion-sensor data was not clearly analysed or used to justify its decision that night-time care was unnecessary.
The social worker did not seek information from specialist inflammatory bowel disease nurses about four months after Mrs Z’s discharge from hospital.
Eventually, we are told, the Council increased the length of the calls for Mrs Z meaning she received a direct payment for 50.5 hours per week.
We calculate that that was nearly 20 hours more per week than the initial package, which was a double handling set of visits amounting to 2.25 hours, x 2 = 31.5 hours a week.
So that extra time would have equated to an extra 1 hr a day x 2 staff, even after allowing for the 5 hours of flexible care. We did not understand why the investigator didn’t think it important to detail the purpose of that extra hour in the context of this report, and we said so at the time.