Date of decision: 14 February 2025
Summary
Birmingham failed to arrange care and support for a disabled adult, resulting in significant distress and financial hardship for his family carer, who felt obliged to give up her job and use her own savings on his care. The Ombudsman found the Council at fault for delays and lack of interim arrangements.
What happened
In October 2022, the Council assessed the care and support needs of an adult, Mr Y, after his original health-funded care package, first in a care home and then at home, had ended. He continued to live with his family.
His sister, Miss X, requested to be his main carer, funded by direct payments, with agency support as needed.
The Council agreed Mr Y had eligible needs but disagreed with Miss X over the amount of care required.
In March 2023, a new social worker reassessed Mr Y and supported Miss X’s proposal. However, because direct payments to family members in the same household are only allowed in exceptional circumstances, the request was referred to a funding panel.
The panel delayed and by May, the sister’s position was that if the Council that if it was unable to agree to her being a part-time carer for her brother, it should provide alternative care via a care agency straight away.
The Panel ultimately refused the proposal in November 2023, citing cost.
During this period, Miss X continued to provide all the care informally, leading to her resigning from her job.
It was only in January 2024 that the Council finally approved a mixed care package, backdating direct payments for 40 hours per week to cover care from Miss X to March 2023. This went up to 56 hours later on.
Miss X argued payments should be backdated to October 2022, when she began providing care without support. She complained to the Council and, dissatisfied with its response, escalated the matter to the Ombudsman.
What was found
The Ombudsman found the Council failed to act within a reasonable timeframe, taking 16 months from the first assessment, to agree and arrange the funding of the care package.
The Ombudsman found that the delay in authorising direct payments to Miss X was excessive and unexplained and that neither was there any evidence Birmingham had appreciated there was a duty to meet the needs at least to the standard it thought necessary, in the interim.
Consequently, the Council’s partial backdating of payments did not fully remedy the injustice. This delay was a breach of statutory duty to meet eligible needs under the Care Act 2014.
The Council also failed to provide interim support during the dispute, compounding the hardship.
The Ombudsman recommended the Council backdate direct payments to October 2022, (equal to the direct payment she would have been paid (40 hours per week) from the date of the first assessment in 2022 to the date of the March 2023 assessment) on top of the back payment to March 2023 that had previously been agreed. Further, that it make additional symbolic payments of £500 each to Miss X and Mr Y for distress and uncertainty, and that it remind staff to ensure timely planning and interim arrangements in future.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
Under the Care Act 2014, councils have a legal duty to assess and meet eligible care and support needs through a care and support plan, which must include a transparent personal budget. The personal budget is essentially the money that the council has worked out it will cost to arrange the necessary care and support for that person.
Direct payments are a potential option under the Care Act for meeting eligible needs for those who ask for them. These payments can offer choice and control by enabling people to commission their own care.
Councils must consider the suitability of direct payments for a person as quickly as possible, against the conditions set out in the Care Act 2014 and in light of the intention of the statutory framework.
It should be observed that payments to close family members in the same household are only permitted where that is regarded as ‘necessary’ to meet needs and must be promptly considered, as set out in the Care and Support Direct Payment Regulations 2014.
Councils must not delay care arrangements while disputes or funding decisions are pending and must provide interim support to prevent harm or hardship. Failure to act in a timely manner or to provide a sufficient personal budget is unlawful and constitutes a breach of a council’s statutory duty, exposing councils to legal challenge and the need to compensate for service failure and distress.
This compensation is in the nature of restitution, and the reason it is within the Ombudsman’s jurisdiction could have been better explored. We know that the man’s package was health funded, and we can see that the sister wished to continue to care. So we think it is possible that the sister had been given permission to be paid under a previous Personal Health Budget source of funding from the NHS when the brother had had CHC. In that situation there was no real argument about the difference between wants as perceived by the Council and needs as perceived by the sister; and it is noteworthy that nobody was contending for a full 56 hours by way of backdating.
The authority for restitution is found in the case of CP v NE Lincs from 2019, in the Court of Appeal, where the point of it was said to be repaying a person for money laid out where it should not have had to have been expended, or for providing labour which was not being provided as a volunteer or informally.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Birmingham City Council (24 003 735) report.
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