Date of decision: 23 June 2025
Summary
The complaint concerned Buckinghamshire Council’s refusal to arrange 24-hour home care for an elderly woman after NHS funding for CHC end-of-life 24 hour care had ceased, and her capital had depleted, choosing instead to offer to fund a nursing home placement. The family argued that the previous NHS home care should continue and that remaining at home matched medical advice.
What happened
The Council assessed the woman’s care and support needs after NHS funding ended. It determined her eligible needs could be met in a nursing home setting rather than through continued home care.
Mrs W continued to privately fund the provision of a ‘live in’ carer to provide 24-hour support at home. Her family had decided to cut the daily calls from four to two as family members were also helping to provide support for Mrs W.
The family, referencing the woman’s and GP’s preferences, sought to maintain live-in carers; Mrs W did not want to go into a nursing home because she wanted to be able to be visited.
The Council explained the top-up process and confirmed financial eligibility for local authority funding subsidy.
Its first stance was that “a domiciliary care package has been considered but this would not meet [Mrs W’s] overnight needs.
During the review, the Council extended interim support pending the availability of a nursing home for £874 – a placement that the family initially accepted. The notes said “If [Mrs W] is making a choice to remain at home, please can a conversation about the top-up consequences take place with her”.
The family later reversed its stance and cited the adverse impact on the woman’s mental health at the prospect of a nursing home. Mrs W’s GP wrote a letter on 15 July 2024 to say that Mrs W had experienced a significant decline in her mental health after being told that she would need to move into a nursing home. The GP also said that Mrs W’s daughter visited daily which greatly benefited Mrs W’s physical and mental health.
The Council re-assessed in September and communicated its decision in October: needs would HAVE to be met in a residential placement, as home care with daily calls and volunteer family support was deemed insufficient and unsustainable for her risk profile. The nursing home placement recommended by the Council would enable family and friends to visit frequently due to its location.
The notes said this:
“[Mrs W] has 24 hour care and support needs which can be met in a [care home] setting… there would be risks around supporting [Mrs W] with a four call a day as she would be on her own between care calls” and, “… that it is [Mrs W] and her family’s preference to be supported at home. However due to the above risks, a domiciliary care package with family tending to her at night would not be sufficient and sustainable.”
The Council paid direct payments at the full interim rate for covering live in care, for historical care costs, but confirmed future support would only cover £873 odd for a nursing home placement. Throughout, the Council referenced statutory duties, cost-effectiveness, and overall sufficiency of care offered.
What was found
The Ombudsman’s stance is that there was no fault “in how it took the decision, and I therefore cannot question whether that decision was right or wrong.” The investigator went on to say that “based on the information available to me, this [staying at home] was a preference rather than an assessed need.”
While the Care Act 2014 says that eligible needs must be met, it also allows local authorities to consider cost-effective methods to do so, provided these methods deliver the desired outcome in meeting those needs. This is reflected in Paragraph 10.27 of the Care and Support Statutory Guidance, which says:
“In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position and must comply with its related public law duties. This includes the importance of ensuring that the funding available to the local authority is sufficient to meet the needs of the entire local population. 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)”
The Ombudsman confirmed the Council could consider cost-efficiency when deciding between suitable care options, provided needs were met and the decision process was sound. Individual preferences were acknowledged, but professional judgment and principles of resource stewardship were lawfully applied.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
This is a very interesting decision shining a light on the implications of reviews of eligibility for CHC funding status for people with long term deteriorating conditions and terminal illness.
Councils are specifically given a discretion to withdraw charges for the care of terminally ill people under the Care Act charging system and s19 Care Act.
As to HOW the needs are met, however, there is no doubt that the Investigator is correct in saying that a Council is entitled to consider cost efficiency when deciding between a number of suitable options to meet a person’s eligible care needs.
That is not the same, though, as treating an unsuitable capped budget for care in the preferred very different setting, as a suitable option at all; nor is it the same as treating the cost of a care home that the person will not go to, because they are refusing to go there, and with mental capacity, as one that is even relevant to the consideration of the budget, since there is no way to make an unwilling person go there, and all the council can do is regard itself as discharged from the duty.
What this Council did, and what is not permitted, is treating the person’s preference as to setting, as their ‘choice’, when they don’t know the Council’s view of the minimum practicable cost of actually meeting their needs at home, and then turning that ‘choice’ into a justification for capping the budget for care at home, through a direct payment, to an offer of the cost of an offer that is a wholly different kind of setting and one that is not going to be taken up. That shifts risk-sharing, even allowing for capacity as to risk being person and issue-specific, in an unlawful way, in our firm legal view.
Although we can see that Buckinghamshire did a lot better here, (by funding the full cost of live in care for the interim pending the availability of a care home) than it had done in the previous complaint report about a similar approach to decision-making as to setting, https://www.lgo.org.uk/decisions/adult-care-services/charging/23-012-371 we simply cannot agree with the finding that there was NO fault here.
In that other Buckinghamshire report which we covered here the Ombudsman said this:
“The Council based its calculation of Mrs X’s personal budget on the comparative cost of a care home placement. That was not acting in accordance with the guidance and did not, as the guidance demands, “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”.”
In THIS report, there is no mention of Human Rights, which is a relevant and mandatory consideration if about to effect a change of one’s home on a client by way of an offer under the Care Act. That’s a public law consideration, in which the Ombudsman’s generalist investigators perhaps need more expertise.
There is also no mention of mental incapacity which is relevant to the question of whether the offer was refused, by the client, which would have discharged Buckinghamshire Council’s duty – or on the other hand, merely being objected to, by the family, in which case, the decision was still absolutely the Council’s. In that case, the issue arises whether it was a safeguarding issue to let the family keep her at home…if in fact that IS what happened. The report hints that Mrs W is still alive and still at home.
According to the Ombudsman, the Council fulfilled its statutory obligations, considered the woman’s wishes, and factored in clinical evidence. In the other Buckinghamshire report we have covered above, 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.
Here, we acknowledge that the GP did not say the same, and neither did the assessor. The Council determined that a nursing home setting was the ONLY way to meet her needs, given the inadequacy of 4 visits a day. The obvious test of what was wrong with that conclusion was that if that was what it thought, then it should have walked away when that offer was refused by the client and/or family because it would have been professionally unacceptable to let her remain there, with an inadequate profile of care.
If that was the case, then leaving Mrs W at home would have been a form of institutional neglect, we think.
The public law problem if this had led to a judicial review instead of a complaint would have been that a limit of 4 visits a day seems to have been Buckinghamshire’s most expansive vision – the maximum amount, that is, of what it could be made to buy – whereas that too was probably an arbitrary cap, as to content, before it even got around to applying the arbitrary cap of the nursing home fee.
The right way to decide this complaint would have been to say that the lowest practicable minimum was the real cost of care – not limited to 4 visits a day, but to the double handling and night time care provided by shifts and family input – considering the request for live-in care from a best value perspective. If that calculation had been done, then the vastly larger cost of keeping her at home, for care, versus the cost that would have been incurred had she gone to a care home, could have been the justification for ONLY offering the placement at the care home – not merely the cost of the care home via a direct payment or commissioned package.
If the cost differential was large but not eye-wateringly so, then live-in care might have been considered to be ‘best value’ and thus funded for compassionate reasons under the power in s19 Care Act.
Or, if it was between the cost of the care home and the cost of live-in care, then the difference between the live-in care and the lowest practicable minimum might have been regarded as a top-up for the family to meet by way of funding or actual care input from them on an informal basis.
Live-in care had been good enough for the NHS when the woman qualified for CHC and the woman had got LESS terminally ill, it seems, thereby losing the funding. Of course, the report does not say what form of live in care was being funded by the NHS during its period of responsibility for CHC and that makes a real difference as to whether there is someone there at night in order to cover needs arising. One model of live-in care that can work well if a family member is wiling to be the employer and which covers 10-11 hours of active care and then being on call at night, is the one where the worker is paid on a daily average basis, rather than on a salaried basis involving minimum wage rates for every single hour.
The genuine difference here between this report scenario and the previous one is that this investigator has overlooked the cap to the content of what would have been needed.
Furthermore, the report inexplicably mentions the Choice of Accommodation directions when the issue here is not a top-up from a third party for accessing a preferred care HOME, but the issue of whether being AT home for care was an offer the Council should have made, or could expect the family to top-up by limiting the offer to a capped budget, the cap being the setting of a care home that the person was definitely not going to take up.
Community care law imposes clear requirements on councils when meeting eligible needs under the Care Act 2014. Section 18 mandates that eligible needs must be met, and section 26 requires personal budgets to transparently show how needs will be met, and case law goes as far as pointing out that an informed decision cannot be made unless or until the consequences of refusing a care home offer, including at-home options (the lowest practicable minimum) have been shared. This is to ensure accountability and lawfulness of decision-making.
Statutory guidance reinforces the importance of person-centred planning and genuine involvement of service users and their carers. Local authorities should not pre-judge service types for the adequate and appropriate meeting of the assessed needs, based solely on cost, and must ensure all options—including home-based care—are fully considered and reasons for rejection are clearly documented. If family or informal carers are involved, reliance on their input cannot be presumed and should be agreed. The courts have made clear in case law (eg P (Croydon) that any care plan must be robust enough to work if family support is withdrawn, and support plans must reflect actual, sustainable arrangements. The Ombudsman applies those principles in complaints reports although the reports sometimes under-emphasise the requirement for transparent, evidence-based consideration of all reasonably available options and for meaningful involvement of families and individuals in critical decisions.
Councils risk breaching statutory duties if they take a blanket approach or reference cost without sufficient evidence that needs cannot be met safely at home, or without an adequately explicit record of assessment rationale. Administrative Court case law confirms that breaches of the Care Act are unlawful in terms of public law principle, and can result in obligations for back-payments or review of plans.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Buckinghamshire Council (24 014 200) 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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