London Borough of Bromley (19 007 855)

Category : Adult care services > Assessment and care plan

Decision : Upheld

Decision date : 14 Sep 2020

The Ombudsman's final decision:

Summary: Ms X complained about how the Council arranged her relative, Ms Y’s social care funding. She said the personal budget was insufficient to meet her care and support needs. The Council was at fault as it set an arbitrary limit on Ms Y’s personal budget and failed to show how Ms Y’s needs could be met through live in care based on the budget available. The Council has agreed to make a payment to Ms Y to acknowledge the short fall in budget and to make a payment to Ms X to acknowledge the distress this caused her. It has also agreed to review Ms Y’s care and support plan.

The complaint

  1. Ms X complained about how the Council has arranged her relative, Ms Y’s, social care funding. She says the Council supported Ms Y’s wish to remain in her own home, but the personal budget was insufficient to pay for her assessed care and support and did not include provision for employment costs. Ms X says the Council has refused to increase the budget. Because of this, Ms Y has had to fund some of her care and Ms X has had to provide some of the care.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. 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). I have decided there are good reasons to investigate Ms X’s complaint since 2017. This is when the Council first set a personal budget for Ms Y to have 24-hour care in her own home. Ms X said this budget was not sufficient and she has been complaining to the Council requesting it increase Ms Y’s personal budget ever since.
  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)

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How I considered this complaint

  1. I considered the information supplied by Ms X and discussed the complaint with her by telephone.
  2. I considered the Council’s response to my enquiries and the relevant law and guidance.
  3. I gave Ms X and the Council the opportunity to comment on a draft of this decision. I considered any comments received in reaching my final decision.

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What I found

  1. The Care Act 2014 and the Care and Support Statutory Guidance set out how councils must assess and meet identified needs for care and support.

Assessment of need

  1. Councils 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 results they want to achieve. If a council decides a person has eligible needs, it must set out how it will meet those needs in a care and support plan.
  2. The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the local authority must involve any carer the adult has.

Personal Budgets

  1. The council must set a personal budget as part of the care and support plan. The personal budget is the money the council has worked out it will cost to arrange the necessary care and support for that person.
  2. Councils must take into consideration a person’s preferences. However, recent case law (R (Davey) v Oxfordshire County Council) found while a claimant’s preferences had to be taken into account, these had to be distinguished from their needs for care. The court of appeal found the Council’s duty is not to achieve the outcomes which the individual wishes to achieve but to assess whether the provision of care and support would contribute to those outcomes. The wishes of the individual may be a primary influence, but they do not amount to an overriding consideration.
  3. The guidance sets out that, in determining how to meet needs, a council may also take into reasonable consideration its own finances and budgetary position. This includes the importance of ensuring that the funding available to the council is sufficient to meet the needs of the entire local population. It says the council ‘may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met). However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centered or compatible with public law principles. The authority may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value’.
  4. The guidance also sets out ‘the detail of how the personal budget will be used is set out in the care and support plan, or support plan. At all times, the wishes of the person must be considered and respected. For example, the personal budget should not assume that people are forced to accept specific care options, such as moving into care homes, against their will because this is perceived to be the cheapest option’.
  5. There are three main ways in which a personal budget can be administered:
    • as a managed account held by the local authority with support provided in line with the person’s wishes;
    • as a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes;
    • as a direct payment.

Direct payments

  1. Direct payments are cash payments made by the council to individuals, allowing them to arrange and pay for the provision themselves. The council should have regard to whether there will be costs such as recruitment costs, Employers National Insurance Contributions and any other costs that may arise from meeting the need with a direct payment. If these costs will be incurred, their amount must be included in the personal budget (and thus direct payment).

What happened

  1. Ms Y is a working age adult who has long term health conditions. In 2016, Ms Y lived in her own flat. Her care and support needs were met by home care arranged by the Council. Her relative, Ms X, visited Ms Y daily and also provided care. Ms Y lacked mental capacity in relation to weighing up risks and Ms X had power of attorney to make decisions about Ms Y’s health, welfare, property and finances on her behalf.
  2. During 2016, Ms Y’s needs increased. During a hospital stay, Ms X and Ms Y decided the only way to meet Ms Y’s needs and ensure her safety and wellbeing was in a care home. The Council agreed with this view. It started the process of arranging residential care for Ms Y. Ms Y was discharged home in the interim, with a Council managed home care service of four hours a day and a night-time care package to reduce risk and meet her needs. The Council said the cost of this package was £1061.76 per week.
  3. In early 2017, Ms X and Ms Y changed their view about the best way to meet Ms Y’s needs. Ms X said the home care package had shown them Ms Y’s needs could be met in her own home. Ms Y’s wish was to remain in her own home and Ms X supported this.
  4. The Council reviewed Ms Y’s needs. The assessment recorded that Ms Y had poor memory, poor mobility and could not retain information about risks with her mobility. This had led to an unacceptably high level of falls. The assessment said Ms Y had needs during the day and night and required 24-hour care 7 days a week to ensure her safety and wellbeing.
  5. It acknowledged Ms X and Ms Y’s preference for Ms Y to remain in her own home and said the Council would support this. It noted live-in care was the preferred option. It would enable Ms Y’s needs to be met safely in her home environment and would be the least restrictive option. It noted residential care could also meet her needs. The needs assessment set out the cost of residential care for a young person was £850 to £1600 per week. A local care home said it could provide care for £890 a week. It said the cost of live-in care was £864 for those with low needs, £977 for those with medium needs, £1090 for those with high needs. Its review panel agreed with the recommendation for live-in care. The Council agreed to fund Ms Y’s care at home by a direct payment to Ms X, who would manage the direct payments and the carer employment process on Ms Y’s behalf.
  6. In February 2017, the Council set Ms Y’s personal budget as £823.93 per week. It calculated this figure based on a local care home that had identified it could meet her needs for this amount. Ms Y’s care and support plan set out its aim was to ‘provide support to remain at home’. Under each of the sections setting out her eligible needs it said, ‘this need will be met through 24-hour care in a residential care home’. It also set out ‘the need is met through a POC (package of care)’.
  7. In May 2017, Ms Y told the Council that the allocated personal budget did not cover the cost of Ms Y’s care. The Council said the budget could not be increased, as it was ‘the maximum personal budget for 24-hour live-in care for someone under 65 years’. The Council suggested Ms Y contact a provider which provided 24-hour care to see if she could find something within budget for the hours required.
  8. In July 2017, Ms Y’s care manager reviewed her care. Ms X again told the Council the personal budget did not cover the cost of her care. She had struggled to employ care workers for the allocated personal budget. She had employed two workers but not a third placing additional strain on Ms X. Ms X provided costs from several providers of live-in care. The costs were around £950 to £1300 a week. The records say Ms Y continued to need 24-hour care as she had needs both during day and night-time. It said her needs were being met through 24-hour care at home. The care manager recommended Ms Y ‘requires 24 hour care to ensure her safety and well-being and the best value for [MS Y] is to receive an increased personal budget. Live-in care would continue to provide for [Ms Y’s] needs in the least restrictive environment and this is the opinion of both [Ms X and Ms Y]. The care and support plan set out that Ms Y’s needs were met through 24-hour care. It set out the current personal budget was ‘£823.93 however the case will be presented to panel to request an increased personal budget’. The review panel did not support this increase stating that there was not enough evidence of need.
  9. In April 2018, the Council reviewed Ms Y’s care again. Ms X said the care was currently working well and Ms Y continued to have day and night-time needs requiring 24-hour care. Ms X again told the Council the allocated budget did not fully cover the cost of Ms Y’s care and family were providing care to fill in the gaps. However, the Council did not review or increase the personal budget.
  10. In January 2019, Ms X requested a review of Ms Y’s care, as she considered her care needs had increased. She again told the Council that the personal budget did not meet the cost of Ms Y’s care. The Council competed a review and agreed to present a case to panel for an increase in the personal budget. The care manager completed a mental capacity assessment of Ms Y’s ability to decide where she lived. They concluded Ms Y had the capacity to make the decision and she ‘was not keen on a care home but could weigh up that this might need to be an alternative’. She recognised that Ms X was the best person to make this decision for her. They noted Ms X would like Ms Y to stay at home with an adequate personal budget to enable this and ‘this is also the view of the care manager’.
  11. Ms X made a formal complaint to the Council. She complained Ms Y’s personal budget was not enough to meet her needs and she had been telling the Council this for two years. The direct payments funded two carers, one overnight seven days a week and one for five days a week. She said the personal budget did not cover the costs of weekend care and Ms Y had needed to fund this herself at a cost of £440 per month. The budget was also not sufficient to cover the cost of carers’ holiday pay, sick pay or required taxes.
  12. She asked the Council to review and increase the budget so she could employ enough carers to meet Ms Y’s needs.
  13. The care manager presented the case for an increase in the personal budget to the funding panel. The funding panel said Ms Y already had 24-hour care to ensure her safety. It said it needed specific information about the additional hours required before it could make a decision and asked the care manager to provide this.
  14. The care manager provided cost comparison figures for Ms Y’s care to the funding panel. They noted Ms Y’s regular night-time needs were not met with the current personal budget. The figures presented to the panel were:
    • Cost of an available local care home - £1050 per week;
    • Direct payments for daytime and a managed service for night-time care - £2078.93 per week;
    • Direct payments for 24-hour care – £2352 per week;
    • Cost of fully managed service – gave a comparison figure of £1016.09 per week for a service user who had a significantly lower level of night-time need than Ms Y.
  15. It provided no comparison for the costs of live-in care which it had agreed was the least restrictive option when it assessed Ms X’s needs in 2017.
  16. The care manager recommended the panel increase the personal budget to £1050 per week, equivalent to the cost of providing care for Ms Y in the care home. The Panel agreed with the care manager’s recommendation and increased Ms Y’s personal budget to £1050 per week.
  17. In March 2019, the Council responded to Ms X’s complaint. It said the Council had agreed 24-hour live-in care for Ms Y in February 2017. At Ms Y’s request, the Council set up direct payments to enable her to have her care and support needs met at home. It said it reviewed Ms Y’s needs in July 2017 and April 2018. In July 2017, the care manager recommended her personal budget be increased in response to an increase in need, but the panel did not support this as there was insufficient evidence of an increase in her needs. In April 2018, the review found her needs were met by the direct payments and family members. It said the care manager had completed an updated assessment of her needs which was presented to panel in February 2019. It deferred the decision requiring further information.
  18. Ms X was unhappy with the Council’s complaint response and complained again to the Council. She said family were only providing care support as the personal budget was insufficient to pay for the required care to meet Ms Y’s needs.
  19. In April 2019, the Council provided a further complaint response. It said the decision was made in March 2019 to increase Ms Y’s personal budget to £1050 per week. This was equivalent to the cost of care if she were to live in a care home setting. It said it was Ms Y’s wish to remain in her own home, a decision supported by Ms X and the Council. It said this request was being met through the direct payments. It said in receiving 24-hour care by personal assistants the care and support Ms Y received should support her wellbeing.
  20. Ms X remained unhappy and brought her complaint to us. She said Ms Y’s personal budget had been insufficient to cover the cost of her care since 2017. She said Ms Y had been paying £110 per week for care out of her own money as the direct payment did not cover the full costs. Ms X also said she had had no choice but to fill gaps in Ms Y’s care, due to the insufficient funding and the Council’s ongoing refusal to set a realistic personal budget to meet the actual costs of Ms Y’s care.

Council enquiry response to the Ombudsman

  1. In its response to our enquires, the Council said Ms Y receives the maximum personal budget, which is enough to meet her assessed needs. The decision to pay for additional support was Ms X’s. It said the personal budget included the cost of hiring carers and the Council had provided cover when the arranged care was not available.
  2. It said the most cost-effective way of providing care was in a care home. It had calculated the personal budget in February 2017 based on the cost of providing care in a care home that could meet Ms Y’s needs. It said this was the best value option. It said Ms Y had previously considered moving into a care home, and if Ms X wanted to give up her caring role, the most economical way to meet Ms Y’s needs would be in a care home. It says Ms Y’s needs are currently met within her personal budget which covers the cost of 24-hour live-in care.
  3. It said the Council was able to cap direct payments and Ms Y’s direct payment had been capped at the level of residential care that could meet her needs.

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Findings

  1. The statutory guidance says the personal budget must cover the cost of meeting the person’s needs and should be based on the cost of local quality provision.
  2. Ms Y’s support plan set out her needs could be met through residential care in a care home or through live in care. The Council has set the budget based on the cost of a care home. The Council can consider the cost of different care options when allocating personal budgets. Case law also supports councils being allowed to limit budgets based on meeting needs not preferences.
  3. However, the Council must be satisfied that, in receiving care at home, Ms Y’s needs are met from the budget allocated. The care and support plan fails to set out how Ms Y’s needs can be met through 24-hour live-in care at home, based on the budget allocated. This is fault. The personal budget was not sufficient to pay for live-in care based on the costs provided in the care plan. Even based on a low level of need the budget was £40 a week short of the figures provided for live-in care.
  4. Ms X chose to use the personal budget to employ personal assistants rather than to use a live-in care agency. The Council was not required to set a budget for an hourly rate support package but had to be satisfied Ms Y’s need could be met from the budget available.
  5. In May 2017, the Council told Ms X the budget could not be increased as it was the maximum budget allowed for a working age adult at home with 24-hour care. The statutory guidance is clear. Councils should not set arbitrary upper limits for personal budgets. Ms Y had to fund her own weekend care and support and had to have her needs met by family. The lack of any detail in the care and support plan about how Ms Y’s needs would be met by 24-hour live-in care based on the budget available is fault. This meant, when it was presented to the Council’s panel it was not clear why the budget was not meeting her needs. The Council therefore missed the opportunity to review the personal budget and set it at a level which would meet her needs when Ms X complained in July 2017 and April 2018. This is fault.
  6. When the Council reviewed Ms Y’s personal budget in March 2019, it again used the care home comparison to set the personal budget, rather than the cost of live-in care provision in Ms Y’s home. This is fault. However, the cost of the budget set was similar to the cost of providing live-in care. So, on that basis I cannot say this caused a significant injustice.
  7. Ms X has been complaining since 2017 that the personal budget was not sufficient to meet Ms Y’s needs. The Council repeatedly told her it could not increase it. Because of this, Ms X has had to provide care for Ms Y herself to cover gaps in care caused by the underfunding. The matter has also caused Ms X distress and time and trouble pursuing her complaint.
  8. The statutory guidance is clear. The personal budget must reflect the cost of meeting the person’s needs, and that councils cannot have arbitrary ceilings for personal budgets. 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 and that the council can show how the budget can be used to meet the needs. It failed to do this and is at fault.
  9. Between February 2017 and March 2019, the budget was not enough to meet Ms Y’s needs as set out in the need assessment and care and support plan. Ms Y had to use her own money to pay for additional care and support at weekends. Based on the cost of live in care Ms Y received around £40 a week less than she should have for 26 months.

Agreed action

  1. Within one month of the final decision the Council has agreed to pay Ms Y £4500, to make up for the shortfall in funding compared to live in care and to acknowledge the time and trouble she was put to.
  2. It has also agreed to write to Ms X to apologise and to pay her £500 to acknowledge the additional strain she was placed under meeting Ms Y’s needs and the significant time and trouble caused to her by the Council’s faults.
  3. Within two months the Council has agreed to review Ms Y’s care and support plan to clearly set out how Ms Y’s care and support needs can be met from the personal budget.

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Final decision

  1. I have completed my investigation. There was fault causing injustice which the Council has agreed to remedy

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Investigator's decision on behalf of the Ombudsman

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