Summary: The complaint is about how a council decided Mr B’s personal budget for care. We do not uphold most of Ms A’s complaint. However, there was a failure to issue care and support plans which was not in line with sections 24 and 25 of the Care Act 2014. This caused avoidable uncertainty about the agreed funding and services for Mr B. To remedy the injustice, the Council will apologise to Ms A and Mr B within one month.

The complaint

1. Ms A complains for her father that West Berkshire Council (the Council) refused to pay for home care for her father Mr B despite this being his and the family’s wishes and decided to fund a care home placement instead. Ms A says the decision caused distress and the family cannot afford the additional cost of home care.
2. Ms A would like the Council to increase Mr B’s personal budget to respect her father’s wish to receive care at home. Their preference is funding for a live-in carer.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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

5. I considered:
• Ms A’s complaint to us
• The Council’s response to her complaint
• Documents described later in this statement
• Comments from the parties on a draft of this statement.
6. I discussed the complaint with Ms A.

Back to top

What I found

7. A council must carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must also involve the individual and where appropriate their carer or any other person they might want involved. (Care Act 2014, section 9)
8. Councils have the power to meet urgent needs before completing a needs assessment. (Care Act 2014, section 19(3))
9. The Care Act spells out the duty to meet eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18)
10. An adult’s needs meet the eligibility criteria if they arise from or are related to a physical or mental impairment or illness and as a result the adult cannot achieve two or more of the following outcomes and as a result there is or is likely to be a significant impact on well-being:
• Managing and maintaining nutrition
• Maintaining personal hygiene
• Managing toilet needs
• Being appropriately clothed
• Making use of the home safely
• Maintaining a habitable home environment
• Accessing work, training, education
• Making use of facilities or services in the community
• Carrying out caring responsibilities.

(Care and Support (Eligibility Criteria) Regulations 2014, Regulation 2)

11. The Care Act explains the different ways a council can meet eligible needs by giving examples of services that may be provided:
• Accommodation in a care home or other premises
• Care and support at home
• Counselling and social work
• Information advice and advocacy

(Care Act 2014, section 8)

12. If a council decides a person is eligible for care, it should prepare a care and support plan which specifies the needs identified in the assessment, says whether and to what extent the needs meet the eligibility criteria and specifies the needs the council is going to meet and how this will be done. The council should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
13. The care and support plan must set out a personal budget. A personal budget is a statement which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. (Care Act 2014, section 26)
14. The Council uses an indicative budget tool to help work out personal budgets. An indicative personal budget is a rough idea of the money needed to buy care to meet the person’s eligible needs based on local market averages.  The tool provides an estimate of care cost that can go up or down in individual cases depending on the actual cost and availability of services.  The tool has a series of questions with points assigned to each answer and a ‘pounds per point’ calculation that converts the points into a sum of money.
15. Statutory Guidance explains a council should review a care and support plan at least every year, upon request or in response to a change in circumstances. (Care and Support Statutory Guidance, Paragraph 13.32). 
16. The Council has a Good Practice Forum made up of managers in adult social care who meet to discuss and approve requests for funding for long term care. (Other councils call this a funding panel. I refer to it in this statement as ‘the forum’). The case manager presents cases requiring long-term care funding to the forum which then decides whether to authorise a personal budget. Once the forum has approved a personal budget, the case manager finalises a care and support plan.

What happened

17. Mr B has Parkinson’s disease and poor mobility. He went into hospital at the end of February 2019. To enable Mr B to leave hospital and live with his daughter, the Council arranged and funded a short-term care package under the Joint Care Pathway (JCP). The JCP, which is also known as reablement or intermediate care, is free, short-term NHS and council-funded care to those leaving hospital to assess and consider their long-term care needs. An occupational therapist (OT) assessed Mr B as needing two carers to help with transfers (from bed to commode or bed to chair).
18. An initial assessment started in March 2019 and completed in May described Mr B’s care needs. It included comments from Ms A and information about Mr B’s health. The assessment set out Mr B’s JCP care package with a care agency. A separate JCP care plan described the services the Council was providing: two carers for 45 minutes four times a day to provide help with toileting, personal care, medication and preparing food and drink. The assessment form noted Mr B had enjoyed a taster session at a day centre and would like to attend. The assessor noted ‘a day centre placement twice a week would address social isolation and provide respite to Ms A.’ The outcome of the assessment was Mr B was eligible for care as he was unable to achieve nine of the outcomes described in paragraph ten.
19. In the middle of April, a social worker met with Ms A and Mr B to discuss his long-term care needs. Ms A asked for a day centre and the social worker agreed to look into this. Ms A also asked for respite care and a carers assessment. The social worker noted a formal carers assessment was to be completed. The social worker also noted she spoke to Mr B’s care agency and told the agency to continue with the current package for the time being.
20. The social worker spoke to Ms B at the start of May and confirmed the existing JCP care package would continue at no charge until the forum had met to approve long-term funding. The social worker also told Ms B that no funding was in place for the day centre (which Ms B had been paying for privately) and her request for this needed to be agreed by the forum.
21. At the start of May, the forum agreed a personal budget of £750 for Mr B. The papers for the forum included costings for three care home placements with vacancies (£700, £750 and £850).
22. There is no evidence in the documentation supplied by the Council that a care and support plan was drawn up and sent to Ms A and Mr B following the forum agreeing a personal budget of £750 for Mr B in May 2019. I can see from the internal case notes that the social worker asked the commissioning team to source an agency that could provide two carers for four visits a day, 45 minutes each visit. There was no mention of respite care or day care. Mr B’s existing JCP care package of double-handed agency care for four calls a day continued.
23. In the middle of May, Ms A phoned an officer and asked about the outcome of the forum. The officer explained the Council had agreed a personal budget for Mr B using a comparative cost of care homes which would meet his needs.
24. Ms A complained to the Council at the end of May 2019 about her father’s care funding and other issues.
25. Mr B went into hospital again at the end of June. He had a series of mini-strokes. The case notes suggest the hospital issued a formal notice to say Mr B was fit for discharge. An OT was to review his care and support plan with ward staff.
26. The Council responded to Ms A’s complaint at the beginning of July saying:
• Mr B went home from hospital with a reablement care package. His care was under review and then a long-term care package would be put in place.
• When a person was in hospital, the assessment was based on information from other professionals. So the social worker spoke to hospital staff about Mr B. This was standard procedure
• A senior member of staff would carry out a fresh assessment of Mr B’s needs at home as Ms A had said the social worker did not ask anything about Mr B’s desired outcomes during the assessment
• The social worker told her that a live-in care package would cost more than the personal budget because there would need to be a second carer for transfers as well as the live-in carer.
• There was no cap on care costs, but the Council could look at different ways of meeting needs
• She had told the social worker Mr B wanted to go to a particular day centre and so the OT did not consider they wanted any more information on day services.
• There was no change to the call time. The agency gave her wrong information
• Mr B did not receive a copy of his care and support plan initially because he was receiving reablement care and so the plan often changed within a short period.
• Reablement is to help people regain their independence. As Mr B did not receive any care before he went into hospital, it was hoped he could regain independence
• The OT offered Mr B respite care in a care home and this was refused. It was usual practice to offer residential respite care to allow the carer to have a break and get some rest
• The Council sent copies of the care plan, financial assessment and carers assessment in May 2019. The care plan was finalised after the panel met
• No-one pushed Mr B to accept residential care. But councils were entitled to consider costs when deciding a personal budget. The Council looked carefully at high cost care packages. It looked at what type of care package could meet assessed needs and offered a personal budget equivalent to the cost of a care home where that would meet the assessed needs.
• The forum decided on a personal budget of £750 based on the cost of three care homes with vacancies. Mr B could have this as a direct payment
• It was Mr B’s wish to be cared for at home, but whether he should be cared for at home, depended on the options available to the Council to meet his needs. The Council would review Mr B’s needs, but it was allowed to take into consideration its budget and the importance of ensuring funding was available to meet the needs of the population.
• The Council initially agreed funding for one day a week of day care at the day centre Mr B preferred and had previously attended, this would have been reviewed.
27. On 4 June Ms B asked the Council for a care and support plan for Mr B with costings and including his personal budget.
28. On 15 July, the OT visited Mr B (who was still in hospital) to complete an assessment of his ability to transfer from a chair. The OT noted she observed Mr B moving from sitting to standing with one person helping him and he could stand for one minute. Mr B was asking when he could go home and whether the same care agency could provide his care. The OT told Mr B the hospital had sent their paperwork saying he was ready for discharge but its papers were unclear: the ward had asked for care to be restarted but it was not clear how long the calls needed to be or whether one or two carers were needed.
29. On 18 July, the OT spoke to Ms A, explaining the hospital had said there was an error on its care request form. The OT told Ms A she had asked the Council’s commissioning team to find an agency who could provide 45 minute calls four times a day. The agency had said single carer calls were possible for the lunch and tea calls.
30. On 19 July, Mr B discharged himself from hospital. The Council had not organised his home care to re-start and it appears officers were not aware of his intentions until after the event.
31. On 23 July, the OT did a moving and handling assessment with Mr B at home, including moving Mr B to and from a commode using equipment. She noted Mr B managed five sitting to standing transfers with one person. Mrs A told the OT she felt two carers were needed and the OT advised that often one carer could do this safely alone using turning equipment and each case was assessed individually. The OT noted her view that with the correct chair (which was due to be delivered) and Mr B having his medication at the start of the call, one carer could do the lunch and tea time transfers safely. The OT noted the morning and evening calls needed two carers as the transfer (from the bed) was more complex.
32. The OT instructed the same care agency that had provided care previously to start Mr B’s care immediately and to provide four calls of 45 minutes, two carers for the morning and evening calls and one carer for the lunch and tea time calls. The OT asked the agency to tell its staff to give Mr B’s medication at the start of the call and give time for it to work before doing the transfer.
33. An initial contact assessment started on 25 July (and completed by 2 September) set out a summary of Ms A and Mr B’s wishes. Mr B remained eligible for care and support as he could not meet nine of the eligibility outcomes (see paragraph ten). The indicative budget was £455.
34. On 6 August, the OT and a social care practitioner visited Ms A and Mr B. Ms A reported she continued to fund day care privately, twice a week and wanted the Council to fund this. She also said a second carer often came in to the two calls that were supposed to be one carer only.
35. On 27 August, the OT visited Mr B again and observed the carers. She noted they gave Mr B his medication and moved him less than a minute later, giving no time for the medication to take effect. The OT was of the view that the lunch and tea calls might only need to be 30 minutes as the care logs reflected the carers stayed less than 45 minutes.
36. An internal email from a service manager said the Council should be offering the most cost-efficient way of meeting Mr B’s needs. He noted this was likely to be controversial with the family but was the fairest way.
37. At the start of September officers noted the only reason Mr B needed two carers was he insisted on being transferred before his medication took effect.
38. The forum agreed a weekly personal budget of £771 at the end of September. Papers suggest the approved personal budget included funding for two weeks agency live-in care for respite and one day a week at a day centre including transport. The documents indicate the forum considered information about the cost of three care home placements with vacancies which could meet Mr B’s needs (£850, 750 and £742.)
39. At the start of October, the OT visited Ms A and Mr B with an officer from the direct payments team. Ms A was noted to be angry and remarked other professionals said Mr B needed two carers for all calls. The OT said the personal budget was reached by comparing costs of care homes that could meet Mr B’s needs. The OT said there was nothing in the agency’s care logs to suggest Mr B needed two carers for the two calls in dispute. The OT said the Council’s in-house service could provide Mr B’s care single-handed. Ms A declined this.
40. The OT completed a review form at the start of October, following the visit to Mr B described in the previous paragraph. This set out the current funding and services the Council commissioned for Mr B (four daily calls of 40 minutes, with two carers for the morning and evening calls, one carer for the lunch and tea time calls and one day a week of day care with transport). The review concluded Mr B remained eligible for social care in 9 of the domains set out in paragraph ten.
41. A final care and support plan dated 7 October 2019 said the Council had agreed funding for one day a week at a day centre with transport and four care calls of 40 minutes each, the lunch and tea time calls requiring one carer and the others requiring two carers. The plan noted Ms A and Mr B wanted a council-commissioned service but may consider a direct payment in future. The plan set out Mr B’s eligible needs and outcomes and noted it supported Mr B’s wish to remain with his daughter and socialise. The plan also noted Mr B could have two weeks respite care in a care home, which he had declined and so instead, the personal budget of £771 included funding for two weeks of live-in care per year for respite and funding and transport costs for one day a week at a day centre, which the forum had approved at the end of September.
42. In October, Ms A emailed several council officers asking them to confirm the agreed care. A service manager replied saying the care and support plan the Council had agreed was a weekly personal budget of £771 to fund:
• Four visits from agency carers to help with administering medication, personal care and preparing meals
• Morning and evening visits with two carers
• Lunchtime and teatime visits with one carer
• One day a week for day care
• Two weeks of respite care.
43. The service manager replied to Ms A’s email saying Mr B could be moved safely with one carer at lunch and tea and the agency felt this was possible as did an OT after assessing Mr B. And, if there was a problem with the agency doing single handed calls (which there was not based on their records), then the Council could use its own reablement carers wo could provide the two calls single-handed. The service manager said Mr B could have a direct payment to arrange care if he was not happy with the current care package or he could use the Council’s reablement service which could provide the lunch and tea time calls with one carer and Ms B was free to top-up the funding. The Council would send a copy of the care and support plan, taking into account her comments.
44. Ms A said she and Mr B did not agree with the proposed funding. She said his care package before the hospital admission was four calls with two carers. She said other professionals apart from the Council’s OT said he needed two carers and on a bad day, two carers were needed. The service manager replied saying the OT was experienced and the Council was confident of Mr B’s safety and the plan met his eligible needs.
45. The OT visited Mr B on 8 October and gave him a copy of the care and support plan. Ms A asked why the calls were 40 minutes and the OT said it was because the care logs said they were 40 minutes at most and carers often left sooner.

Comments from the Council

46. The Council told me:
• It had not refused to fund home care for Mr B: it was and is funding home care and this did not require a top-up
• The issue was the amount the Council agreed as the personal budget
• The personal budget of £771 met Mr B’s needs based on the cost of home care.
• Ms A was also receiving carer support.

Comments from Ms A

47. Ms A told me since complaining to us, the Council had backdated payment for one day a week of funding for Mr B to attend the day centre, starting May 2019.

Was there fault?

The Council’s actions following the first hospital admission

48. The Council put in place a short term reablement care package to enable Mr B to leave hospital. Mr B had been assessed as needing two carers with all transfers for his reablement/JCP care. This was based on information about his abilities in March 2019.
49. The Council completed an assessment of need and care and support plan after Mr B left hospital. Councils can provide urgent care under powers in section 19 of the Care Act 2014 without completing a needs assessment and this is what happened here to enable Mr B to leave hospital. There was no fault in the failure to complete an assessment and care and support plan before Mr B went home.
50. However, the Council did not provide a copy of the reablement/JCP assessment and care plan to Ms A, who is Mr B’s agreed representative. It said in the complaint response that this was because the plan was subject to changes. I consider it was fault not to send a short-term care plan to the family even if the plan might have changed over time. The failure to issue a care and support plan caused avoidable uncertainty for Mr B and Ms A about what had been agreed in terms of care funding and for how long.

The Council’s actions following reablement care

51. When Mr B’s short-term care was due to finish, the Council completed a review and further assessment to determine his long-term care needs. The forum authorised a personal budget. These actions were in line with the Care Act.
52. However, the Council did not issue a care and support plan to the family. Ms B asked the Council for a care and support plan at the beginning of June and so it appears that she had not received a copy. There was no care and support plan after the forum’s decision on the personal budget in May. By failing to issue a care and support plan the Council acted with fault and not in line with sections 24 and 25 of the Care Act 2014. This caused avoidable uncertainty about the agreed funding and services for Mr B.
53. Mr B went into hospital for a second time at the end of June. This was at the same time as the Council was dealing with Ms A’s complaint. As part of the complaint response and because Ms A was unhappy with the personal budget offered in May, the Council offered a fresh assessment/review of Mr B. This action was an appropriate response and in line with paragraph 13.32 of Care and Support Statutory Guidance – which says councils should review care and support when circumstances change or in response to a request.
54. Ms A is unhappy that the Council used care home prices as a reference when deciding Mr B’s personal budget. There is nothing preventing a council using care home pricing information when setting a personal budget, as long as the personal budget is the cost of meeting the person’s eligible needs. There is no evidence to support Ms A’s allegation that the Council will only fund a care home placement for Mr B. Instead, the Council has commissioned a package of home care, day care and respite care at home for Mr B.
55. Ms A considers Mr B should have two carers for all four of the care calls. The Council agreed to fund two carers for only two of those calls. There was no fault by the Council as it carried out appropriate assessments of Mr B’s ability to complete transfers and concluded that transfer could be done safely with one carer as long as Mr B gave time for the medication to take effect. I have no grounds to criticise the Council’s approach.

Day care

56. The Council said in the complaint response that it was funding one day a week of day care. Until recently, it had not paid the day centre and Ms A had been paying the bill. Ms A told me the day centre recently received a backdated payment from May 2019. The delay in paying the agreed funding was fault, but the Council has taken appropriate action to remedy the injustice.

Agreed action

57. The Council should, within one month, apologise to Ms A and Mr B for the failure to issue a short -term care plan and a longer-term care and support plan in May 2019.
58. As I have not upheld most of Ms A’s complaint about how the Council decided on Mr B’s care funding, it is not appropriate to recommend the remedy Ms A seeks.

Back to top

Final decision

59. Ido not uphold most of Ms A’s complaint. However, there was a failure to issue care and support plans which was not in line with sections 24 and 25 of the Care Act 2014. This caused avoidable uncertainty about the agreed funding and services. To remedy the injustice, the Council will apologise to Ms A and Mr B within one month of this statement.
60. I have completed the investigation.

Back to top

Investigator's decision on behalf of the Ombudsman