Date of decision: 10 December 2025
Summary
An elderly woman with memory and cognitive difficulties received poor quality home care from a Council‑commissioned provider, including repeated medication errors and undercooked food, leading to a substantiated safeguarding finding.
The Council then mishandled respite and permanent placement arrangements: it delayed securing respite, failed to explain or offer direct payments at key points, and did not robustly test whether cheaper care home options could lawfully and safely meet her needs, leaving the family to self‑fund respite and with continuing uncertainty about whether suitable affordable provision could have been found.
What happened
After a November 2023 hospital admission, Mrs Z returned home with a free reablement package of four daily care calls.
A Care Act needs assessment led to a reduced long‑term plan of three calls a day, with Mrs Z’s daughter, Mrs X, providing support between calls; the Council commissioned MIDAS Care for personal care, meal preparation and domestic tasks. In December 2023 the Council reviewed the package, recorded no major concerns, and reminded the provider of the importance of meal support; direct payments were not discussed.
From early February 2024 the family reported escalating concerns to MIDAS Care: a care worker opened the wrong week’s blister pack and omitted blood‑thinning medication; another allegedly forcibly spoon‑fed Mrs Z and failed to notice she had been sick; care staff put her to bed but left her downstairs; there were repeated mix‑ups with blister packs and worries she was getting too much anticoagulant. Miss Y, another relative, made a safeguarding referral focused on medication errors; the Council initially declined a safeguarding enquiry, proposing a review instead, but agreed to a safeguarding investigation in mid‑March after further incidents.
At a March meeting with the provider, the family raised both medication and wider quality concerns: undercooked food (including fish fingers cooked in a microwave), overfeeding of Mrs Z’s pet, poor use of the washing machine, early departures, and inadequate visit lengths. The provider agreed to spot‑check medicines administration and retrain staff.
The Council reassessed Mrs Z, agreed to a two‑week respite stay and a change of home‑care provider, and later substantiated the safeguarding concerns, accepting that potential harm had been caused and that staff shortages and incomplete shadowing had contributed; the provider implemented staff training and recruitment.
Organising the agreed respite in a bedded-setting was mishandled. Respite starting 21 March 2024 was agreed on 13 March, but by 20 March, the Council had only just identified a care home, which then refused to accept Mrs Z because of her anticoagulant medication.
The family instead identified care home A, local to Mrs X, which could take Mrs Z from 21 March. Mrs Z moved in for respite; the family completed paperwork indicating a top‑up of £170 a week for that placement and, because the Council did not agree the funding, ended up privately paid around £2,000 for the first two weeks.
The Council later accepted it had been at fault for the delay and for failing to check the medication issue, yet Mrs Z received no Council funding for this respite even though it had been agreed as necessary for Mrs X’s break.
Mrs Z enjoyed care home A and wanted to stay permanently. In April 2024, the social worker reassessed and recommended 24‑hour residential care, recording that Mrs Z had settled well at care home A and that the family preferred her to remain there. They noted an assessed need to be within 10 miles of Mrs X to maintain their relationship.
The Council’s Brokerage Team contacted contracted homes and identified five providers; the nearest acceptable one in the view of the Council was care home B at £603 per week, while care home A charged £1,125 per week, thus apparently requiring a large top‑up. Brokerage asserted that the family’s reasons for preferring care home A did not amount to an assessed need.
The Brokerage service said it discussed five options with Mrs X and that she refused to consider any home other than care home A, and that without her consent it could not share documentation with other providers.
Case notes, however, recorded only care home B as the concrete alternative offered.
Miss Y reported that care home B had a CQC rating of “requires improvement”, and was itself unsure it could meet Mrs Z’s needs, and that it might take weeks to arrange district nursing; she told the Council the family felt pressured to accept an inadequate option and could not afford care home A.
Miss Y also asked whether a cash‑sum/direct payment could be set using rates in Mrs Z’s own home area rather than near Mrs X, or whether Mrs Z should instead return home with a care package.
The social worker replied that if Mrs Z stayed at care home A she (or the family) would be liable for the extra cost because an alternative placement had been offered.
The Council said it could offer a direct payment for respite only at the Council’s “most cost‑effective” rate (£603) minus Mrs Z’s assessed contribution of £103.96, and maintained that the preference for care home A was not an assessed need. Miss Y disputed that there were any other realistic options beyond care home B, which the family had already rejected.
Mrs X then proposed entering into a short‑term contract with care home A, paying the top‑up herself for a limited period while she looked for an alternative placement she could afford. She explained they had already paid £2,000 for two weeks’ respite and could not continue with that level of expenditure.
The social worker discouraged this, suggesting it might be seen as “manipulating the personal budget”, and later refused to base a direct payment on rates in Mrs Z’s home area.
When respite at care home A ended on 11 April, the Council offered either a new home‑care package commissioned within its £603 budget or a direct payment at that level for the family to arrange home care themselves.
A new provider (care provider C) eventually offered four calls a day, and Mrs Z returned home in mid‑April; the family appear to have borne any gap between the direct payment/home‑care budget and the actual cost of the package.
[We think that this means that the family inevitably paid a top-up for the additional cost, but that it might have been cheaper than the care home, if the booked visits were no longer than an hour 4 hours a day. 7 x 4 = 28 per week x £30 ph would be £840, for instance, and £603 towards that, would have seemed like better than nothing; but the point was that £840 was still regarded as too much for the family to bridge the gap of any available suitable care home. And we explain below why we think it would have been unlawful anyway.]
Miss Y complained in April 2024, including about the failure to consider the budget on the basis of Mrs Z’s home area; the Council did not respond until October 2024, by which point Mrs Z had died (August 2024). In its response the Council argued that direct payments could not be set up within the short timeframe between the end of reablement and the start of long‑term provision, and that it would have scheduled a discussion had the issue been raised, despite clear records that the family had in fact sought a cash‑sum option.
The Council eventually agreed to apologise, to pay Mrs X £500 for distress, frustration and uncertainty, and to pay around £1,500 to the family – approximately what it would have contributed via direct payments towards three weeks’ respite in care home A, had it acted lawfully.
What was found
The Ombudsman found the Council at fault for failing to offer direct payments at the outset or at the December 2023 review and for not providing adequate information about them when problems with MIDAS Care emerged.
Under the Care Act, care planning must actively consider how to meet eligible needs, including via direct payments, and people must be informed of that option; failure to raise direct payments can unlawfully limit choice and fetter the authority’s discretion as to how needs are met.
Statutory guidance confirms that direct payments can be used to purchase short stays in care homes for up to four consecutive weeks in any 12‑month period, specifically including respite for carers. The Ombudsman accepted that the Council should have properly explored using a direct payment so the family could lawfully commission respite at care home A with a top‑up, rather than leaving them to fund the full cost privately.
The investigation also upheld the family’s complaints about the quality of commissioned care. MIDAS Care’s conduct was found likely to have breached the CQC’s fundamental standards, including safe care and treatment, in relation to medication administration and food preparation. Mrs Z did not receive the support she should have, and Mrs X suffered avoidable distress in having to police the care at a time when the package should have relieved her caring burden.
The safeguarding duty was ultimately discharged, but only after an initial refusal to investigate and after multiple incidents that could and should have been avoided had the care been competent.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
This report underlines several practical points, once one injects a bit more of the legal framework into the analysis, we would suggest:
- When commissioned care is poor enough to trigger safeguarding concerns, councils must review and, where necessary, reassess under s27, and must not treat a willing family carer as an inexhaustible resource.
- Direct payments should be raised explicitly at assessment and care‑planning stages, including for short residential respite within the four‑week limit, so families can choose to commission care homes themselves with appropriate top‑ups where lawful.
- Choice of Accommodation rights apply to respite as well as permanent placements; at least one suitable home must be available within the personal budget, and any top‑up must be genuinely optional, not the product of commissioning failure.
- Councils remain legally responsible for meeting eligible needs even when providers fail or brokerage processes break down; internal delays or market problems do not displace the duties under sections 18, 24, 25 and 27 to ensure that care is lawful, safe and sufficient.
The missing bit of law that we think is the most serious is this: arbitrarily low asserted fee rates are a common problem in the context of choice of accommodation, but it is noteworthy that this investigator seemed to regard the offer of £603 a week as sufficient to meet the needs at home, once longer term residential care has been refused.
For the permanent placement, the Ombudsman accepted that the Council was entitled not to fund care home ‘A’, long term, given its significantly higher cost.
It is true that Councils are not obliged to pay for the most expensive setting and may set a lower personal budget, but ONLY provided at least one suitable option is genuinely available within that budget.
When the budget needs to cover the meeting of needs in a wholly different setting, the law is that the lowest practicable minimum, not an arbitrary and now irrelevant cost of a different setting, is the measure of sufficiency.
£603 WAS an arbitrarily low rate, without any firm justification, even for a care home, and even for respite. With regard to the legality of it being offered for care AT home, on the footing that it would be bought in by the family and not the Council, the Investigator should have used the broader body of Ombudsman’s findings on this topic. This is cost-capping of homecare, based on the asserted costs of a care home – and one that was not even found to have been safely regarded as adequate!
The Ombudsman has taken a principled approach against that approach being legal, even if it appears to support the family’s choice for their relative as to setting, not merely which provider. We know this because we have kept a very close eye on reports touching on this topic, over the years. See here for more discussion:
At the respite stage, the Council had delayed securing a placement and, when it finally identified one, failed to check whether it could safely manage Mrs Z’s anticoagulant medication.
The Care and Support Statutory Guidance stresses that direct payments may be used for short residential stays, within the four‑week limit, to give carers a break. Once the Council had accepted that respite was necessary for Mrs X’s wellbeing, the duty to meet that need under s18 arose; its broker’s failure to secure a safe placement in time did not extinguish that duty. In legal terms, the Council could not lawfully rely on its own commissioning shortcomings to justify providing no funding at all for a respite stay which it had itself deemed necessary.
This was more than poor administration: a lawful care and support plan under s25 must specify how identified needs will be met and must be sufficient. Offering a placement that cannot safely handle a critical medication need is not a lawful way of meeting that need.
There are also significant omissions around carers’ rights. Mrs X was clearly providing necessary care alongside the commissioned package, yet there was no evidence the Council ever offered a carer’s assessment under s10.
Public law and case law on carers’ rights make clear that the presence of an unpaid carer meeting necessary needs triggers a duty to offer an assessment; the fact a carer is willing at one point does not absolve the authority from considering sustainability and carer breakdown. A timely carer’s assessment would likely have identified Mrs X’s need for respite earlier and could have prevented the crisis that ensued.
However, the way the Council tested suitability here was problematic. The record showed only care home B as making a concrete offer; Miss Y’s evidence that care home B itself was unsure whether it could meet Mrs Z’s needs and that there were concerns about the CQC “requires improvement” rating raised legitimate questions about its suitability. There was no evidence of any objective assessment by the Council of whether care home B could in fact meet Mrs Z’s clinical and support needs safely, nor of active exploration of other homes within the personal budget.
Under the Choice of Accommodation framework and public law principles, the burden lies on the Council to satisfy itself, and the person, that at least one option within budget is suitable; a family’s refusal or scepticism does not absolve the authority of that duty. Some at least of the earlier Ombudsprudence on toxic top-ups makes this all perfectly clear.
The Council’s refusal to consider a short‑term direct payment or time‑limited contract so Mrs Z could remain at care home A, while alternatives were explored is another key legal failing. Direct payments are designed to give flexibility and control, including in transitional situations where a permanent solution is not yet in place. The Council appears to have conflated the question of whether care home A was affordable and best value or even required to be funded, to meet need, as a permanent placement, given the needs, with whether a strictly time‑limited direct payment (with or without a family top‑up) could lawfully be used to meet needs while a suitable long‑term option was identified. That conflation was inconsistent with the Care Act’s person‑centred planning duties, which require individual circumstances to be considered rather than rigid adherence to internal policies or financial preferences.
A further point of concern was the Council’s characterisation of Mrs X’s proposal to base the personal budget on rates in Mrs Z’s home area as “manipulation”.
Statutory guidance on sufficiency of personal budgets emphasises that budgets must be sufficient to meet assessed eligible needs, taking account of actual local market costs, and that councils may need to set more than one personal budget rate where the cost of providing accommodation to a person out of their home area, is different.
Here, it was lower, out of area, than in Mrs Z’s home area; but the Council was responsible for how the respite placement in that non-home area had come about. What happened would be better characterised as manipulation of the concept of a sufficient personal budget, we have to say, and the concept of needs: it cannot be right that at one and the same time, it was essential for Mrs Z to be within 10 miles of Mrs X, but that the reasons for needing to be in a care home were not part of her needs!
Geography may be relevant to how needs are met (for example, proximity to a carer), but it cannot be used mechanically to limit a budget if that leads to insufficiency. Where needs could be met either near a carer’s home or in the person’s original area, both options must be considered on their merits, and the person and family must be involved in finalising a care plan, under s25.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Staffordshire County Council (24 007 701) 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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