Is it lawful for a local authority to produce a care plan which specifies that an elderly person will have care in their own home with a live-in carer but then only fund the same as a local care home (which is substantially less money)?

This is a very hard question to answer at the level of principle, because every word matters.

Yes it COULD BE legal, if what you’re describing is in fact what a person or their finance LPA or deputy has AGREED to.

For instance:

1. either the person has got mental capacity, and didn’t want care in a care home, and has agreed that topping up is what they will accept from the family, ie paying for the live in care cost additional to the amount provided by the council – because it keeps the person and/or the person’s house equity, safe and their wishes and feelings respected. Some people would be kind enough to agree to this on the footing that they accept the logic that the council could possibly have contended that the care home was a good enough offer and the only offer it would make, and thus the person feels grateful.
2. or, alternatively, maybe the person lacks capacity, but a family member has got the legal authority (LPA or deputyship) to say no to the offer of a care home, and is confident that the person’s disregarded capital or the family’s money will be able to pay the extra amount for the live in carer over the amount provided by the council – this time it’s the family who feels ‘grateful’ for the council going along with its choice.
3. or, alternatively again, the person lacks capacity and the family have been allowed to say no to a care home, regardless of whether they’ve got proper legal authority to make decisions for the person, and they are being allowed to make this agreement with the Council on the basis of some notion their view of the person’s best interests, and the live in care is wanted, for everyone’s reassurance, but nobody could say that it’s the ONLY practicable way of meeting need, because it effectively over-provides for the person’s problems, and the person could be cared for with visits or shifts, but it’s less hassle to have the live in staff, for the consistency of care.

But NO, it is not lawful

1. If the live in care is literally the only way to meet the person’s need, humanely, or feasibly, because no care home will accept the person.  This could be the case if the person is very disinhibited or brain injured and volatile perhaps. If this very exceptional degree of need for care at home had been agreed by the council’s professional front line staff and their management – then in that situation any cost cap would be arbitrary and the money would not meet the need but should have been raised so as to be sufficient. Employed live in care is not actually 24 around the clock care, however, so one would need to be careful about what one was thinking it provided.

2. If the live in care is not the ONLY feasible way to meet need, say, because the care home would also have done the job, adequately and was happy to accept the person, but the person or their legally authorised person said no, and the Council thought that offering this cost cap, was open to it under the Care Act, on account of it being ‘the client’s choice’ not to accept the care home, it’s wrong about that. It was IT’S choice NOT TO WALK AWAY – the refusal discharged the council of its duty to meet need – so it is still bound by the Care Act because it chose to negotiate to offer something. It must meet the needs – the real needs, adequately, and has no right to apply a cap.

In that scenario, one must then ask what the sum be that would be MORE than a care home but less than live in care, and actually meet the unmet need?  That’s the sum that the council should offer in THAT scenario.

And this means that if the live in care is not the only feasible way to meet need, other than the care home, and there’s a way in which home care could be arranged so as to be there so as to manage risk down to a proportionate level, bearing in mind how important it might be for the person to stay at home, but through visits instead of live in care, then THAT sum – the sum of providing for THAT profile of care is then the lawful amount to offer.

The difference between THAT sum, and the live in care cost, then becomes a top up, because the live in care is a want and not a need.

There is academic debate as to whether it’s legal for the person to use their own money because they will already be being charged for their ‘direct payment’. It’s probably safest, if it’s not the family’s money we’re talking about here, but the person’s own, especially if the person lacks capacity, for the family to help the person spend their disregarded money below the savings threshold of £14,250.