Date of decision: 12 November 2025
Summary
A disabled woman with complex needs [unspecified in the report] relied on four personal assistants and direct payments for intensive day and night care. The Council set her personal budget and waking night payment without clearly linking it to her assessed needs, leaving her unable to fund the hours required at or above minimum wage. The Council then failed to review her care plan promptly after her health and family circumstances deteriorated, and its complaint responses repeatedly side-stepped the real issue, causing significant distress and uncertainty.
What happened
In summer 2024 the Council carried out a Care Act needs assessment for an adult woman, Miss X, with complex and serious care and support needs; her mother, Ms Y, took part in the assessment. At that time Miss X lived at home with a young child, was pregnant, and employed four personal assistants funded by direct payments, while another adult lived with her and provided some unpaid care.
During the re-assessment, Miss X and Ms Y both said the existing personal budget did not meet her needs and asked for 24‑hour care, seven days a week.
The Council noted her health had declined and said it was difficult to work out what her long‑term needs would be after the pregnancy, but it did not clearly record which specific needs were being met by the other adult or the total amount of care it assessed Miss X’s needs as requiring.
The following month the Council issued a care plan and personal budget, to be delivered via direct payments, which included daytime care of 15 hours per day Monday to Friday and 3 hours on Sunday, plus an overnight element of six nights per week paid at a flat waking‑night rate of £92.50, without specifying how many hours of waking night care this was intended to cover. The plan also included some additional daytime and nighttime sums to accrue over time for occasional extra care.
Soon afterwards Miss X’s circumstances changed significantly: she gave birth to her second child, her health worsened, and the other adult stopped living with her, removing that unpaid element of informal care.
In October 2024 the Council responded to these changes by visiting Miss X at home, telephoning Ms Y and contacting medical professionals, and it requested clinical information to help it understand any impact on her care needs.
At the end of November 2024 Ms Y made a formal Complaint to the Council, arguing that the personal budget did not fund the care her daughter required, and specifically that the £92.50 waking‑night payment was insufficient to pay a personal assistant for the remaining nine hours of each night not covered by the daytime allocation, at or above the national living wage.
Shortly after the Complaint, the Council offered to increase support hours temporarily by commissioning overnight support from an agency, but Ms Y declined this option, concerned about additional costs.
In December 2024 the Council’s Complaint response stated the £92.50 waking‑night payment was a fixed Council rate that a social worker could not change, and stressed it was Miss X’s legal responsibility as a direct‑payment recipient to pay her personal assistants at least the national living wage and fund any additional hours they agreed to work via “top‑up” payments. Through December 2024 and January 2025 Ms Y contacted the Council several more times, repeating that the waking‑night rate did not cover the hours needed, warning that an external agency would cost MORE, and explaining that Miss X’s health and home situation had deteriorated so much that she now needed 24‑hour care, but could not afford to buy extra support because all her disability living allowance went into the care package [by way of charges, we think] and she lived on benefits.
The Council replied several times, reiterating that it would not increase the waking‑night rate and that Miss X, not the Council, was responsible for ensuring her staff were paid at least the national living wage. It also insisted the personal budget was not designed to provide 24‑hour care and reported that Miss X’s social worker did not consider she had 24‑hour needs, yet it still failed to state clearly how many hours of care the personal budget was meant to fund or how many hours the social worker had assessed her as needing.
The Council accepted internally that it had considered increasing Miss X’s personal budget but had postponed any decision while it explored potential support from Children’s Services.
In early 2025 it told Ms Y that a meeting had been arranged between Miss X’s social worker and other staff to discuss the issues and said this was its final response to the Complaint.
The Ombudsman examined the assessment against the Care Act statutory guidance and found that, although the Council had recorded some of what Miss X could and could not do and her desired outcomes, it had not properly recorded which of her needs were being met by the other adult in the household or quantified the level of care she required overall. That failure meant the Council could not later identify what shortfall arose when the other adult stopped caring, and it also meant the personal budget and waking‑night element could not be transparently linked to her assessed needs or to a specific number of night‑time hours.
The Ombudsman found that when Ms Y reported the other adult’s withdrawal of care and Miss X’s deteriorating condition, the Council did keep the situation under informal review, sought information and offered some extra funded support, so was not at fault for initially deciding not to carry out a full review in December 2024. However, the Council did not complete a formal care and support plan review until May 2025, several months after Ms Y’s repeated, detailed concerns and the significant changes in Miss X’s health and household support.
During the investigation the Council clarified that the waking‑night rate at the time was intended to cover between seven and nine hours; at nine hours, the implied hourly rate would still fall below the national minimum wage, and this had never been properly explained to Ms Y during the Complaint process. The Council has since revised its waking‑night allowance so that it clearly covers eight hours of night‑time care at a rate above the national minimum wage, and it has reviewed Miss X’s care plan again and set out its current provision and plans for reassessment as her circumstances change.
What was found
The failures fed directly into a flawed care plan and personal budget that did not clearly explain how the allocated funds—especially the waking‑night element—related to her assessed needs or the exact number of hours of care being funded.
The Ombudsman also found fault in the Council’s delay in reviewing Miss X’s care and support plan: despite clear evidence of significantly changed circumstances and repeated requests from her representative, the Council did not carry out a formal review until May 2025, which was not “as quickly as is reasonably practicable” as required by Care and Support Statutory Guidance under section 27 of the Care Act 2014.
The delay, combined with unclear budgeting, caused significant distress and uncertainty to Miss X and Ms Y, and left Miss X unable to be confident that her eligible needs were being met safely and lawfully.
The Council’s Complaint handling was found to be inadequate because it focused narrowly on stating that the waking‑night rate was a fixed, non‑negotiable amount and that Miss X must pay at least the national living wage, instead of engaging with the core question of whether the budget was sufficient in law to meet her assessed needs and whether the implied hourly funding fell below statutory minimum wage levels.
The Council also failed to explain, at the time of the Complaint, that the waking‑night payment was intended to cover between seven and nine hours and that at the upper end it would still imply an hourly rate below the national minimum wage, which was fault.
In light of the identified injustice, the Ombudsman recommended that within four weeks the Council apologise to Miss X and Ms Y for faults in the needs assessment, care plan, failure to review in a timely way and Complaint handling, and pay Miss X £400 as a symbolic sum to acknowledge the distress caused.
Within 12 weeks it was said that the Council should also remind relevant officers of key duties:
- to record eligible needs in sufficient detail to support a clear care plan and personal budget;
- to document needs met by unpaid carers;
- to specify the actual number of funded care hours in plans and budgets;
- and to review care plans promptly in line with statutory guidance without delaying for information from other departments or agencies.
The Council must provide evidence it has completed these actions.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
The Ombudsman’s analysis of the law and guidance fully reflects how community care law requires councils to approach the link between assessment, eligibility and the setting of a personal budget. It does not, however, say that it’s a very clear illustration of decided case law, namely the Croydon (P) case where the council set its face against engaging with the parents of P to see how much they were willing and able to offer, thus rendering the care plan and budget indefensibly and irrationally insufficient. This is BASIC community care law, we are afraid to say.
Community care case law going back decades emphasises that assessment must identify all needs, including those currently being met by family or other unpaid carers, and then determine eligibility by disregarding that informal input so that any later withdrawal of care can be properly recognised as creating unmet eligible need, and the need for a rational nexus between the needs, any scoring system, the pounds per point, and the local quality market rate.
The report accepts poor recording of the other adult’s role but underplays that this failure also undermines the legality of the original eligibility decision and not just later care planning. [We wonder if the other adult was the second child’s father and thus being expected to do his ‘bit’ because there is the underlying issue of whether Children’s Services should be contributing, and when that is the case, parental responsibility is often factored in.]
Community care principles also stress that the council’s duty is to ensure eligible unmet needs are actually met through appropriate services or funding, and that the personal budget is the quantified expression of that duty; the report does not, however, fully confront the underlying question of whether an implied hourly rate below minimum wage could ever lawfully count as sufficient to discharge a duty to meet assessed night‑time needs. We think it could, if it was an allowance, but only for a sleeping night, in light of the Mencap litigation and the way that a daily average basis for paying for live in care can operate, but not for a waking night. The law is that simple, and it would have helped to state it in this report.
The Ombudsman’s discussion of review and revision could be said slightly to understate the public law significance of delay once circumstances have clearly changed. Public law requires timely reconsideration when there is obvious evidence of increased risk or loss of informal care, particularly where the original plan was already fragile; the report notes the late formal review and finds fault, but it frames earlier informal contact and limited additional support as adequate for a period instead of asking whether, in light of well‑established community care principles on reviews and re‑assessments, the council should have treated the reported deterioration and withdrawal of unpaid care as automatically triggering a proportionate re‑assessment of need and budget.
The treatment of direct payments in the report does not fully explore the legal distinction between what a person chooses to spend and what a council is obliged to fund at a reasonable market‑tested rate. Public law analysis of personal budgets and direct payments stresses that a council cannot simply assert a flat internal rate and then rely on the individual’s “responsibility” as an employer to bridge the gap, where the rate itself is insufficient to purchase the assessed hours from any lawful provider; the report criticises the council’s communications and lack of clarity but stops short of explaining that, in community care law terms, a flat rate that cannot fund the assessed hours at or above legal wage levels risks being an unlawful fetter of discretion and an irrational approach to setting a sufficient budget.
Community care case law on care planning and personal budgets also underlines that where only one objectively adequate pattern of support exists (for example, continuous night‑time presence to manage predictable risks), cost considerations cannot justify a package that is knowingly structured so that the available funding will not buy that level of cover; the Ombudsman identifies a lack of clear linkage and distress but does not fully set out this constraint on councils’ discretion within the confines of an absolute duty to meet assessed eligible unmet needs.
The report is comparatively narrow in its handling of carers’ rights and the legal status of unpaid care. Community care law makes it clear that while councils can take account of what carers are willing and able to do, they cannot assume or require free care as a permanent substitute for funded services, and they must consider the carer’s own wellbeing and potential eligibility for support; the focus in this decision is mainly on the loss of the other adult’s care as a factual change, rather than on whether earlier practice and the ongoing approach to the mother’s and other adult’s involvement blurred the line between voluntary family help and de facto reliance on an unsustainable level of unpaid support. A more complete public law analysis would point out that, once the council knew the other adult had withdrawn and that Ms Y was warning repeatedly that needs were not safely covered, it should have treated any further expectation of unrecorded unpaid cover as inconsistent with its duty to plan on the basis of what carers are genuinely willing and able to provide and to revisit that assumption when carers say they cannot (or will not) go on.
For councils and practitioners, the broader lesson from community care law is that sufficiency, transparency and lawfulness of budgets cannot be separated from robust assessment and recording, and that complaints about “rates” or “top‑ups” are often really about whether a council is discharging non‑delegable duties properly, or defensibly, in public law terms. Councils should ensure that every needs assessment clearly distinguishes between needs and current arrangements, that every personal budget can be explained as the costed total of the services required to meet eligible unmet needs at defensible market rates, and that any indication of deteriorating health, withdrawal of unpaid care, or unsafe gaps in night‑time cover prompts a timely, documented reconsideration of both need and budget rather than a prolonged focus on internal ceilings or commissioning practices.
It is good that the investigator says this at the end of the report:
- Assessments must record eligible needs at a level of detail that is adequate to prepare a clear care plan and personal budget.
- Assessments and care plans must identify any eligible needs being met by a carer who is willing and able to do so. This must be recorded at a level of detail that is adequate to enable a prompt and effective response by the Council to any changes in circumstances (for example a breakdown in the caring relationship).
- Care plans and personal budgets that identify hours of care must record an accurate number of hours that a person is eligible for. This is to ensure it is clear how many hours of care the personal budget has been allocated to provide.
- Care plans must be reviewed promptly in line with the statutory guidance on planned, unplanned and requested reviews. Reviews should not be delayed or deferred whilst waiting for information from other Council departments or partner agencies.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Cheshire East Council (24 016 532)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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