Summary: Mr J complains about the way the Council calculated the personal budget to meet his care and support needs. The Ombudsman has found fault causing injustice. The Council has agreed to apologise and reimburse Mr J for the costs of meeting his eligible care and support needs.

The complaint

1. Mr D is Mr J’s legal representative. He complains that, when assessing and meeting Mr J's eligible care and support needs, the Council failed to:
1. set out the costs of arranging the care and support needed to meet Mr J's eligible needs.
2. provide a personal budget which covers the cost of a suitable placement to meet Mr J's assessed needs within the area he lives in.
3. produce a personal budget with reference to the actual cost of meeting Mr J's care needs. Instead, the Council has taken a 'bandings' approach.
2. Mr D says delays by the Council and NHS in determining the funding meant Mr J had wrongly had to fund his own care.

Back to top

What I have investigated

3. The law says we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. Some of Mr D's submission refers to matters dating back to 2014. Having reviewed the information available to me, I consider an appropriate starting point for my investigation is October 2017 when Mr D contacted the Council for assistance. Based on the evidence seen, my view is that complaints about any earlier matters could have been raised with the Council and the Ombudsman sooner.

Back to top

The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

7. Another investigator spoke to Mr D about the complaint. I considered the information he sent, the Council’s response to our enquiries and:
• The Care Act 2014 (“the Act”)
• The Care and Support Statutory Guidance (“the Guidance”)
8. I sent Mr D and the Council two draft decision statements and considered the comments I received.

Back to top

What I found

Assessments of care and support needs

9. The Act requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The Council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs.
10. Where councils have determined that a person has needs which are eligible for support, they must meet those needs. Councils must provide a care and support plan which sets out what the person’s needs are and how these will be met.

Personal Budgets

11. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan.
12. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. The detail of how the person will use their personal budget will be in the care and support plan.
13. The Act states the personal budget must be an amount that is the cost to the council of meeting the person’s needs. In establishing the cost to the council, consideration should therefore be given to local market intelligence and costs of local quality provision. The personal budget is comprised of the council’s contribution and the person’s contribution.

Charging for care and support

14. Councils can make charges for care and support services they provide or arrange. The Guidance states that people who have over the upper capital limit (£23,250) are expected to pay for the full cost of their care. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution.
15. Councils must assess a person's finances to decide what contribution he or she should make. The Council can take a person’s capital and savings into account subject to certain conditions.

Top-up payments

16. If someone is assessed as needing residential care the council must ensure that at least one choice of accommodation is available that is affordable within a person's personal budget.
17. If a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person's needs in a less expensive home within the personal budget, it can still arrange a place at the home if the person can find someone else (a 'third party') to pay a top-up. The top-up is the difference between the personal budget and the cost of the care.
18. In such circumstances, the council needs to ensure the person paying the top-up enters a written agreement with the council and can meet the extra costs for the likely duration of the agreement.
19. If no suitable accommodation is available at the amount identified in the personal budget, the council must arrange care in the more expensive setting and adjust the personal budget to ensure it meets the person’s needs. In these circumstances, the council must not ask anyone to pay a top-up.

NHS continuing healthcare

20. NHS continuing healthcare (CHC) is a package of care arranged and funded solely by the health service in England for a person aged 18 or over, to meet physical or mental health needs that have arisen because of disability, accident, or illness. It is the responsibility of the relevant NHS body, not the council, to assess the person's needs and decide whether they are eligible for CHC.
21. Responsibility for arranging and monitoring the services required to meet the needs of those who qualify for CHC rests with the NHS. Complaints about CHC are dealt with by the Parliamentary and Health Service Ombudsman.

Ordinary residence

22. Councils are required to meet the eligible needs of people who are “ordinarily resident” in their area. The Act specifies which local authority is responsible for the person's care and support when the person is placed in another authority's area. The principle is the person placed 'out of area' is deemed to continue to be ordinarily resident in the first or 'placing' authority area. The local authority which arranges the accommodation, therefore, retains responsibility for meeting the person's needs.
23. A person who lacks capacity to decide where they should live may acquire ordinary residence in an area if their attorney or deputy has decided to move them there for “settled purposes” in their best interest.
24. If the person funds their own care, they (or their deputy) may choose to move to another council area. If their funds then reduce, they can apply to the council area that they have moved to in order to have their needs assessed. If it is decided that they have eligible needs for care and support, the person’s ordinary residence will be in the place where they moved to and not the first authority.
25. It is not the Ombudsman’s role to determine ordinary residence. That is for councils or the Secretary of State to determine. However, the Guidance says the determination of ordinary residence, or any dispute processes, must not delay the process of meeting needs. I have therefore treated the Council as though it has a duty to meet Mr J’s eligible needs.

What happened

Background events

26. Mr J had lived in the Council’s area but he suffered an acquired brain injury whilst working in Council 2’s area in 1998. As a result he has cognitive impairment and restricted mobility; he does not have capacity to make decisions about his care. Mr J’s wife is his deputy and appointed Mr D as their legal representative.
27. On leaving hospital Mr J moved to a specialist rehabilitation unit in the Council’s area. Mr J had received compensation and his placement was self-funded, with NHS funded nursing care. He was not eligible for CHC.
28. Mr J then moved back to his home in the Council’s area and received homecare. The Council provided a direct payment of £622.45 per week, which was the full cost of the homecare. There is evidence Mr J was not asked to pay a contribution to the cost of his care.
29. In 2014 it was agreed Mr J should move to Council 2’s area to be closer to family. Mrs J found Care Home X. The Council agreed to pay £650 per week. It says this was the cost of a placement in a residential unit in its area for a young person with a disability. The Council says Mrs J chose a placement which was more expensive than this and paid a top-up. She made these payments in her role as deputy, on behalf of Mr J using his compensation fund.
30. The NHS assessed Mr J’s eligibility for CHC in November 2014, although it did not determine he was eligible until April 2016. The Council therefore considered that Mr J’s care was being funded and arranged by the NHS.
31. In November 2016 Mrs J told the Council that Mr J’s needs could no longer be met at Care Home X and he was moving to Care Home Y, which was in Council 3’s area. The Council stopped funding Mr J’s care because he had arranged his own care and had not been placed or assessed by the Council. The Guidance suggests that at this point Mr J may have acquired ordinary residence in Council 3’s area.
32. The NHS decided in December 2016 that Mr J was not eligible for CHC, but in error it told Mrs J he was eligible. Its formal decision was issued in March 2017 and Mr D appealed. In October 2017 the NHS told Mr D it would pay CHC from April 2016 until there was a new assessment for CHC.

October 2017 onwards

33. Mr D asked the Council to clarify who was responsible for meeting Mr J’s care and support needs.
34. The Council replied in December 2017 that it was considering whether it had any ongoing funding responsibility for Mr J’s care, as Mrs J had been paying the full cost of his care in Care Home X and he had been eligible for CHC funding.
35. It sent a schedule of the payments it had made to Mr J since 2014. This shows the Council had paid £2,600 every four weeks (£650 per week) throughout 2015 and 2016. Mr J’s contribution was £457.20 per week.
36. The letter is not clear whether the total personal budget was therefore £1,107.20 per week, but there is a case record from February 2018 which says between March 2014 and November 2016 the Council had paid £650 per week to Care Home X and Mr J had paid his assessed weekly contribution directly to the Council. This indicates the total personal budget in 2015 and 2016 was £650 per week.
37. There was ongoing correspondence between Mr D and the Council. Mr D told the Council Mr J had still not received any funding from the NHS and in January 2018 he asked the Council to assess Mr J’s care and support needs. The Council agreed to do so.
38. The NHS carried out a new CHC assessment in January 2018 which found that Mr J was not eligible. Mr D appealed.
39. The Council contacted Council 3 to discuss ordinary residence and the responsibility for assessing Mr J’s care and support needs. The case records show Council 3 did not respond until after a further CHC review in April 2018, which confirmed the decision Mr J was not eligible.

Mr J’s complaint

40. Mr D complained to the Council in May 2018 that it had failed in its statutory duties because it had not assessed or met Mr J’s care and support needs and as a result Mr J had had to fund his own care. He asked the Council to carry out a financial assessment. The Council took legal advice and agreed to assess Mr J’s care and support needs.
41. The Council assessed Mr J’s care and support needs in June 2018. It found he had eligible needs which were being met by his current placement in a specialist care home. The assessment says Mr J needed one-to-one support with nutrition, due to the risk of choking, and that he received eight hours of one-to-one support. In response to my first draft decision, the Council clarified this was eight hours per week.
42. The assessment says the weekly cost of the placement was £2,321 plus £13.50 per hour for the one-to-one support. The care and support plan says Mr J’s personal budget was £650 per week.
43. The Council replied to Mr D’s complaint on 28 June 2018. It apologised there had been a delay in completing the needs assessment. It said it had met its statutory duties until Mr J moved to Council 3’s area in November 2016. It had understood the NHS was then responsible for Mr J’s care, but once the NHS had indicated it would review Mr J’s CHC eligibility in January 2018, the Council had agreed to assess his needs.
44. The Council said it would refund any payments it owed to Mr J for his care since December 2016 once it knew which periods had been funded by the NHS. However, it would make these payments if there was no response from the NHS by the end of July 2018. It said it would pay £650 per week, less Mr J’s contribution.
45. Mr D and the Council continued to correspond. Mr D disputed that Mr J’s personal budget was £650 per week. He said the Council had appeared to use a “bandings” approach to determine it, rather than consider the actual cost of meeting Mr J’s needs.
46. The Council said it had previously considered Mr J’s needs could be met within a young person’s unit at a cost of £650 per week. However, as Mr J’s needs had changed it now considered his needs could be met within a specialist unit for those with challenging behaviour, at a cost of £995 per week. In response to my first draft decision, the Council provided a list it had compiled at this point of care homes which charged approximately £995 per week in its and Council 3's area.

Funding for Mr J’s care and support from January 2018 to February 2019

47. The Council agreed to backdate its contributions to Mr J’s personal budget to 4 January 2018, due to the delay in assessing his needs. It said it would deduct £6,555.20 from the refund, as this was the Council’s contribution for the period from 5 April 2016 to 26 November 2016, which the NHS had now agreed to fund.
48. In August 2018, the Council’s financial assessment determined Mr J should pay £459.44 per week towards the cost of his care and his personal budget was £995 per week.
49. The Council therefore agreed to pay £535.36 per week from 1 September 2018 directly to Care Home Y and said Mrs J would pay the balance. Mrs J told Care Home Y not to accept the Council’s payments as there was an ongoing dispute about the funding.
50. Mr D asked the Council to provide details of placements that could meet Mr J’s needs within his personal budget of £995 per week. The Council told Mr D in February 2019 that the cost of a potential placement in Council 2’s area would be approximately £1,500 per week. This cost would be shared between the Council and the NHS, as the Council would only be required to meet the social care element. Mr D complained to the Ombudsman in April 2019. Mr D has made a separate complaint to the NHS about CHC delays.
51. A further CHC assessment was carried out by the NHS in Council 3’s area in February 2019. This recommended Mr J should be considered eligible for CHC. In June 2019 the NHS awarded Mr J CHC funding for the period 5 April 2016 to 3 January 2018. In August 2019 it awarded backdated CHC funding from February 2019.
52. This means the period under dispute that I am considering is January 2018 to February 2019. The Council says the personal budget for that period was £995 per week. Mr D says this is not sufficient to cover the full cost of Mr J’s care.

My findings

53. Mr D complains about the way the Council calculated Mr J’s personal budget in 2018. He says the Council has wrongly adopted a bandings approach to determining the budget. I have seen no evidence of that. However, I find there was fault by the Council.
54. The June 2018 care and support needs assessment is not clear about how much one-to-one support Mr J required. The care plan does not set out the costs of meeting Mr J’s eligible needs nor show how the personal budget of £650 per week relates to the cost of his care. I realise the Council says Mr J’s needs could be met in a placement for that amount, but the assessment notes the actual cost of Mr J’s placement was £2,321 per week plus one-to-one care.
55. The Council then said Mr J’s needs could be met in a more specialist placement at a cost of £995 per week. It has sent evidence there were care homes that charged this amount and said some were potentially able to meet Mr J’s needs. But this is not evidence that these homes were available to Mr J, or could meet his needs for that amount. Nor is there any evidence of a care and support assessment or care plan which shows how such a placement could meet Mr J’s eligible needs.
56. I therefore consider there was fault in the way the personal budget was calculated in 2018 as it is unclear how it is sufficient to meet Mr J’s eligible needs. This has caused uncertainty for Mr and Mrs J about how much the Council’s contribution to his care costs should have been.
57. In its response to our enquiries, the Council said that Mrs J was funding the balance of the care costs privately as a top-up.
58. If the cost of the care was more than Mr J’s personal budget, the Council may ask a third party to pay a top-up to cover the difference. But it may only do this if it can be shown that the person’s needs can be met in a placement for the amount of the personal budget and the person still chooses to go to a more expensive placement.
59. I have seen no evidence that an alternative, cheaper placement was considered, suitable or available. When Mr D asked the Council to identify a placement that could meet Mr J’s needs for the personal budget of £995 per week, it was unable to do so.
60. In addition, top-up payments must be made by third parties, not by the service user. I have seen no evidence of top-up agreements with Mrs J and the evidence shows she was making the payments on behalf of Mr J with his funds. Mr J was not assessed in 2018 as being a self-funder and so was not funding his care privately. I therefore find it was fault for the Council to ask Mrs J or Mr J to pay a top-up.
61. In the absence of evidence that a suitable placement was available for £995 per week, the Council should have adjusted Mr J’s personal budget to ensure it covered the cost of meeting his needs. There is a case record from September 2018 which says the actual cost of Mr J’s placement was £3,048.99 per week, including health services.
62. The delay in the needs assessment and the ongoing dispute about the personal budget meant Mr J had to fund his own care from January 2018 to February 2019. This is his injustice.
63. In my first draft decision, I recommended the Council reimburse Mr J the difference between the actual cost of his care and his assessed contribution from 4 January 2018 to 6 February 2019. In response the Council said, whilst it accepted in principle the need to reimburse some of the cost, it was a placement the Council would not have considered commissioning without agreement to some of the costs being borne by the NHS for the health elements of the service, which the Council could not lawfully fund. The Council agreed to reimburse Mr J “a reasonable contribution” towards the cost of the social care.
64. I issued a second draft decision to clarify that the personal budget must always be an amount sufficient to meet the person’s care and support needs, and must include the cost to the local authority of meeting the person’s needs which the local authority is under a duty to meet. In response the Council sent calculations showing the breakdown of the costs of Mr J’s care, including the elements which related to healthcare. This showed in order to meet Mr J’s eligible care and support needs in 2018, a personal budget of £2,390.63 per week was required.

Agreed action

65. The Council has agreed to, within a month of my final decision:
1. Apologise to Mr J and Mrs J for the uncertainty, distress and time and trouble caused by the lack of clarity in the 2018 care and support plan.
2. Reimburse them the personal budget required to meet Mr J’s eligible care and support needs, as set out in paragraph 64, less his assessed contribution, from 4 January 2018 to 6 February 2019.

Back to top

Final decision

66. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman