Date of decision: 08 April 2026
Summary
Derbyshire Council was at fault for delays and inconsistencies in assessing and re-assessing an elderly woman’s care needs, for producing inconsistent personal budgets and care plans, and for delaying complaint responses.
What happened
Mrs Y was an elderly woman with several health conditions who lived at home with her husband and was supported by her family. In 2023, after she was discharged from hospital, the Council arranged Direct Payments so she could receive care from a provider chosen by her family. The provider charged above the Council’s usual rates. However, at the time the care was needed, there was no care available from providers charging the Council’s rates.
Mrs Y’s care plan said that if another agency had the capacity to provide the support at a lower cost, Mrs Y would have the option to remain with the same provider and pay the difference or for her care to be transferred to a cheaper agency.
In July 2024, Mrs Y’s family asked for a reassessment of her care needs. The Council completed the reassessment in September 2024 and found her care needs had increased as her husband’s own care arrangements had changed. It offered a different provider within the original personal budget, this time, but the family wanted Mrs Y to remain with the same provider for continuity and familiarity.
The Council discussed the matter at its Care Act Assurance Meeting in September 2024, but did not authorise a higher personal budget based on the current provider’s hourly rate. It recognised Mrs Y’s anxiety and the relationships she had built with her carers, but said the family and the Council needed to consider other options and the situation could then be discussed again at a future Assurance Meeting.
The Council discussed this with Mrs X. It said it would see if it could negotiate with the current care provider, but otherwise Mrs X would need to consider Mrs Y or her family paying a top-up, source an alternative care provider and explore other creative ways to meet Mrs Y’s needs.
In October 2024, Mrs X wrote to Mrs Y’s MP to raise concern about the impact of a change of care provider. The MP contacted the Council and said Mrs Y’s family believed consistent care was essential for her well-being and the uncertainty was causing significant anxiety.
The Council sent Mrs X the September 2024 assessment in November 2024, and Mrs X again contacted the Council about the effect of changing providers on Mrs Y’s wellbeing. The Council carried out a further reassessment in December 2024, and her needs continued to increase; that assessment produced a higher indicative budget. It recorded that Mrs Y was anxious about unfamiliarity.
The Council again considered the case at its Care Act Assurance Meeting and decided on a personal budget based on the Council’s rates rather than the current provider’s rates, which was lower than the indicative budget generated at assessment. The Council told the family they would need to consider a different provider.
In December 2024, the Council wrote to Mrs X to apologise for not yet responding to the MP’s service enquiry. Mrs X then made a formal complaint about the proposal to change provider, the suggested two-week transition period, the differing budget amounts, and poor complaint handling. She asked for a fresh reassessment and review of the care plan.
The Council’s response to the MP’s enquiry acknowledged delays in the September 2024 reassessment and in providing Mrs X with the information needed to complete the care and support plan, and apologised for the delay. It appreciated the need for Mrs Y to receive consistent care, but it also needed to provide an equitable offer and to allocate resources fairly. It said Mrs Y’s care had been through the quality assurance process and it considered the personal budget offered was sufficient to meet her needs. It said Mrs Y could be supported in three ways: through a Council-accredited agency, by staying with the current provider if Mrs Y or her support network paid the difference, or by using Direct Payments with personal assistants or another provider within the personal budget amount. It temporarily increased Mrs Y’s personal budget so she could stay with the current provider while new arrangements were explored, said it would create a transition plan and extend the period to 30 days, and apologised for the delay and confusion over the MP’s contact.
In January 2025, Mrs X raised further concerns with Mrs Y’s MP, saying the variations between indicative and agreed personal budgets were large, the cost figures provided by the Council were inaccurate, the decisions were financially driven rather than person-centred, and the family felt railroaded into accepting another provider, plus there was delay in response to the previous complaint.
Mrs Y was reassessed again in February 2025; the reassessment noted that she wanted to remain with the same provider and found changes in routine very stressful, and it produced a new indicative budget.
A new Care Plan was completed in March 2025, describing Mrs Y as having a complex illness and increasing her personal budget to match the indicative budget; it said a new provider needed to be found, but the Direct Payment would continue while the complaint was ongoing.
Also in March 2025, the Council provided a final response to the MP’s enquiry. It said it could not investigate the Support Plan solution suggested by Mrs X because of conflicting cost figures and insufficient information, maintained that it had set a personal budget sufficient to meet Mrs Y’s eligible needs in December 2024, apologised for payment errors to the provider, and said Mrs Y’s care at home would be calculated using the Council’s hourly rate.
In April 2025, Mrs X made further complaint directly to the Council raising concerns about the Council’s previous responses. Mrs Y then moved into residential care in May 2025 after a fall at home.
After meeting with the family in July 2025, the Council sent another final complaint response. It acknowledged the family’s view that person-centred care, choice, and control had not been properly reflected, said staff changes within Adult Social Care had contributed to inconsistent budget figures and assessments, accepted that the assessments had not reflected Mrs Y’s dependence on consistent staff, said the suggested two-week transition period was insufficient, apologised for delays in complaint handling, and concluded that Mrs Y should have been able to remain with her provider for an extended period of time due to her her health deterioration and difficulty engaging with new staff. It said it had requested a learning review of its initial response.
What was found
The Ombudsman found delay of over two months in completing the July to September 2024 reassessment and a further two-month delay in sending Mrs X the assessment, which caused frustration and delayed the care and support plan. The Ombudsman found it was not fault for the Council to ask the family to consider different options after the September 2024 reassessment, but it was fault that the December 2024 personal budget decision did not show how Mrs Y’s deteriorating health, complex needs, anxiety and long-standing relationship with familiar carers were properly weighed.
The Ombudsman also found fault in the way the assessments and support plans were built up over time, because they became lengthy and did not reflect Mrs Y’s current circumstances or dependency on familiar carers, and found significant variation between indicative and personal budgets, causing uncertainty and confusion for Mrs X.
The Ombudsman said the repeated discussion of switching providers added stress and uncertainty, but because Mrs Y continued to receive care from the same provider and a sufficient Direct Payment was maintained until she moved to residential care, there was no further injustice to remedy for her.
Mrs Y had died, so no remedy could be made for her, but the faults caused Mrs X significant uncertainty and frustration.
The learning review was to be carried out within three months of the decision, and the Council was to produce an action plan of how it would prevent the faults recurring in the future.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
Councils should ensure that reassessments are completed promptly when families report significant changes in need or carer circumstances, because delay in updating the assessment delays lawful care planning and increases family anxiety.
Councils should record clearly in personal budget decisions how they have weighed deteriorating health, complex needs, and the importance of familiar carers to a person’s wellbeing, rather than treating those factors as an afterthought to cost considerations.
Councils should keep assessments and care and support plans up to date and focused on a person’s current circumstances, avoiding the practice of layering new information onto old documents without re‑presenting a clear picture of present needs and dependencies.
Where indicative budgets and final personal budgets differ, councils should explain transparently how the figures have been derived and why any reduction from the indicative amount still meets the duty to provide a sufficient budget to meet eligible needs.
Repeatedly raising the prospect of provider change, without a clear and considered rationale linked to the Care Act framework, can itself be a source of stress and should be avoided unless and until a lawful needs‑led decision supports such a move.
The Ombudsman considered general public law principles requiring councils to give clear reasons for financial decisions, especially where different budget figures are proposed over a short period with no obvious change in need.
Care and support assessments should be treated as the foundation of the whole record, not as a loose accumulation of notes: each reassessment needs to produce a coherent statement of current needs, outcomes and impact, rather than simply adding paragraphs to previous versions.
The Ombudsman’s decision recognises delay and inconsistency in reassessment and care planning. It notes that the Care and Support Statutory Guidance allows councils to consider their finances and budgetary position as well as equitable outcomes to ensure fairness in care and support packages across the local population. The decision states that while the Council could consider finances and budgetary constraints in its decision making it also needed to consider Mrs Y’s individual needs and preferences. This reflects the public law requirement that a needs assessment must lawfully consider the impact of needs on all relevant aspects of wellbeing, including the importance of continuity of care and home as part of emotional stability.
We acknowledge that given Derbyshire’s continued extending of the enlarged personal budget, no injustice was caused to the now deceased woman.
What the Ombudsman does not deal with, however, is as follows:
a) Some of its own decisions have previously suggested that there is no lawful scope for top-ups from the individual or family in home care personal budget setting (East Sussex – here] [We do not think that this is correct, for either Care Act or s117 clients, and the investigators allow it all the time when a person does not want to leave home and go in to cheaper residential care. But we understand the policy-based reason behind forbidding first party top-ups in the context of accommodation is related to double charging for the meeting of needs through the tariff income system and that same concern would logically apply to charging for home care that was being topped-up, too. There is no case law on the point of principle here, as yet.]
b) If the family were providing their views as to what was the right outcome, then they were probably doing so as best interests consultees, which would have involved a finding that the woman herself lacked capacity to decide what to do. If that was the case, then a best interests decision by the Council would have had to weigh up the pros and cons as relevant considerations for a lawfully compliant MCA decision, let alone a Care Act decision. There is no mention of mental capacity in this report.
c) The first reassessment found increased needs, and a reduction in the husband’s own ability to provide care, yet did not provide for an increase in the budget, even for that increase in needs and dependency, let alone an increase in the budget for the by-then-established more expensive current provider. The budget was not increased until December 2024, the increase in needs having been flagged up in July and noted in September of that year.
d) The direct payment Care Act conditions for a right to a direct payment do not explicitly allow cost comparison of different providers who are not contracted to the council. The Guidance requires sufficiency to be based on quality local market rates – but also suitability for the particular individual, which brings us back round to the relevance of the woman’s capacity, and her best interests in relation to the identity of who would be needing a lawful basis for touching her, and hence funded.
This is all the more important for the investigator to factor in in the context of a reassessment, in our view, where the Council’s OWN commissioning has meant that the original personal budget set could not have been justified as sufficient, and this had led to the original budget not being defensible until it covered the provider’s services.
It is one thing to draw a distinction between wants and needs at the outset of a care journey, but on a review, even if nothing had changed in terms of the needs or informal care supply, after one year, it would be ridiculous to say that the old ‘public’ rate should still apply, after the Council’s own failings have led to reliance on a more expensive provider. When the needs HAVE changed, or the informal carer has proved to be less able or willing, the Council’s approach to one standard rate being sufficient simply will not do, in public law terms.
The three options offered were these:
a) To use a Council accredited care agency to provide a package of care.
b) To continue to receive Direct Payments and remain with the current provider, with Mrs Y or her support network paying the difference between the two costs.
c) To continue to receive Direct Payments and employ personal assistants or a different care agency within the personal budget amount.
This amounted to (the first) denying a direct payment without saying which condition had not been met; paying a top-up (the second) for what was being regarded as a want, rather than, by then, a need, without establishing whether the new personal budget was sufficient to cover suitable local quality provision; or (the third) going with a different care provider, which again would have omitted any consideration of whether preference for a provider after a market failure-driven original budget had had to be set, might have firmed up into a need, by then.
The Guidance (and therefore the investigator) hedges its bets about what to do when the direct payment deployment route will cost MORE than the commissioned route. The investigator summarised this ambiguity as follows, and it can be seen that it does not say whether to deny the direct payment, or cap it:
“The authority should work with the person, their carer and independent advocate (if there is one) to agree on how best to meet their care and support needs. It may be that the person can take a mixture of direct payment and local authority-arranged care and support, or the local authority can work with the person to discuss alternate uses for the personal budget. Essentially, these discussions will take place during the planning process and local authorities should ensure that their staff are appropriately trained to support personalised care and support, and to facilitate decision-making.”
There is nothing in the Guidance that suggests that it will always be acceptable to hold a person to a rate that does not enable private purchasing, via the direct payment, just because of a cost differential between commissioning and a direct payment. One will offer better value, and Best Value should be what any Quality Assurance Meeting should be grappling with!
The Guidance is itself wholly inadequate on this point, but the LEGAL point is that a direct payment is a right, once the 4 conditions are met, and cost-effectiveness for the Council in comparison to commissioning is not one of the conditions.
We think that this is not surprising given the appearance of ‘control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided)’ in the list of wellbeing features that must be promoted, although we accept that the point is a moot one. It is one which in legal terms may well depend on the size of the price differential between an evidenced sufficient rate for a commissioned service, and the one being offered by a preferred provider. We must not forget that there is no such thing as a right of choice of home care provider, OTHER than through a direct payment, in the Care Act framework; only choice of Accommodation is provided for explicitly, in the Care Act. That is what leads to statutory top-up opportunities, in that specific sphere of accommodation arrangements, subject always to further conditions. But we think that it is no more possible to stop a person from contributing to a package that they have been given commissioning authority for, on behalf of another person, for the care, and that in fact there is no specific mention of how that sort of top-up is now seen, within the charging regulations.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Derbyshire County Council (25 007 177) 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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