Summary: Mrs X complained the Council delayed setting up direct payments for her mother, Mrs M, following a needs assessment and failed to show the budget was sufficient to meet Mrs M’s needs. The Council was at fault. It delayed arranging the direct payments and failed to review the personal budget when it reviewed Mrs M’s care needs. The Council has agreed to review and backdate the personal budget, apologise to Mrs X and pay her £250 to acknowledge the time and trouble and frustration caused. It has also agreed to review its processes.

The complaint

1. Mrs X complained the Council delayed setting up direct payments for her mother, Mrs M, following a needs assessment and has failed to show the budget was sufficient to meet Mrs M’s needs. The Council said the budget was sufficient to meet her needs in a care home but has not provided evidence in support of this. Due to the delays, Mrs M had to fully fund her care for 15 weeks after the initial assessment and the Council has not backdated its contributions.
2. In addition, Mrs X complained there were errors in communication, requests for unnecessary information and delays in responding to the complaint which caused her time, trouble and frustration.

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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)

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How I considered this complaint

5. I have considered the information provided by Mrs X in writing and on the telephone. I have considered the Council’s response to my enquiries and the relevant law and guidance.
6. I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I considered the comments I received in reaching the final decision.

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What I found

The relevant law and guidance

7. 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

8. 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.
9. 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

10. 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.
11. Where local authorities have determined that a person has any eligible unmet needs, they must meet these needs.
12. 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.
13. 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’.
14. 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’.
15. The guidance sets out the personal budget must be an amount that is the cost to the local authority of meeting the person’s needs. In establishing the ‘cost to the local authority’, consideration should therefore be given to local market intelligence and costs of local quality provision to ensure that the personal budget reflects local market conditions and that appropriate care that meets needs can be obtained for the amount specified in the budget. 
16. Once an individual’s capital falls below £23,250 they are entitled to access council support to meet their eligible needs. The council will assess the person’s finances to decide what contribution he or she should make to their personal budget for care.

Direct payments

17. 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).

Mental capacity

18. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:
• because he or she makes an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.
19. The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
20. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
21. Section 4 of the Mental Capacity Act 2005 provides a checklist of steps that decision makers must follow to determine what is in a person’s best interests. The decision maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.

What happened

22. Mrs M has a diagnosis of dementia. She has lived in her own home for over 50 years and was receiving 24 hour support from a privately funded live-in carer. She has two daughters: Mrs X and Ms Y. In late August 2019, the Council allocated a community care worker (CCW) after Mrs X requested an assessment of Mrs M’s needs as Mrs M’s finances had dropped below the level at which she could afford to self-fund her care.
23. In September 2019, the CCW visited Mrs M to assess her needs. They found Mrs M was able to engage with the assessment and Mrs M’s daughter, Ms Y, was also present to support her at the assessment. They noted Mrs M wished to be supported to remain in her own home and was happy and content with the support she was receiving. Mrs X and Ms Y supported this. They noted Mrs M required support in managing and maintaining her home, preparing and cooking meals, prompting with managing her continence, with personal care and with dressing/undressing and support with accessing the community. Mrs M’s daughters supported her with shopping, paperwork, accessing appointments and finances. They assessed Mrs M required 24 hour care.
24. The CCW recommended assessed support be provided by direct payments with family paying a top up so Mrs M could continue with her chosen method of support of a live-in carer. The assessment gave an indicative amount for the personal budget of £850 and requested funding at this level. The current live-in care arrangement cost £900 a week and the family were willing to pay the additional £50 a week.
25. In October 2019 a Council officer spoke with Ms Y and advised that if the family opted to keep Mrs M at home, the Council would consider funding up to the cost of a residential care bed. The family would be expected to meet the difference in cost. The direct payments would be provided by a pre-paid card and Mrs X agreed to manage the pre-paid card.
26. In mid-November 2019, the CCW sent the support plan to the Council’s Direct Payments Team so it could set up the payment arrangement. The support plan noted a personal budget of £850 with client contributions to be deducted from this.
27. In November 2019 the Council’s system notes record the CCW made a decision it was in Mrs M’s best interests to continue receiving 24 hour support at home to maintain her physical and mental health and well-being. They noted this was the least restrictive option. They set out the other options which were considered which were home care, increased informal care, reablement, supported living and assisted technology.
28. In late November 2019 a team manager asked the CCW why a residential option was not considered or funding equivalent to the cost of a placement. They noted the Council has a duty to support with assessed needs but it was not obliged to provide support above and beyond what could reasonably meet assessed needs.
29. The CCW put the direct payment on hold while they discussed the required top up with Mrs X. The Council said its residential rate was £600 and so this was the maximum it would pay to meet Mrs M's needs. Mrs X also queried whether an insurance policy of Mrs M’s could be cashed in to pay the extra payment. In early December 2019 Mrs X agreed to pay the extra in the short term while the family considered their options and awaited advice from the Council.
30. In late December 2019 the CCW revised the best interests’ decision. This now included consideration of a residential placement. They noted Mrs M had always requested to her daughters that she remain at home. The home setting was the least restrictive environment that allowed Mrs M to remain supported but engaged with typical daily activities, and to remain in the community. They noted Mrs M’s needs and safety had been managed well with the current live-in care arrangements. Mrs M would not be subjected to rules and regulations of any facility and would have freedom to remain with her current health professionals. They decided it was in Mrs M’s best interests to continue with live in care via a direct payment and that this was the least restrictive option. It set out the cost as £900 a week with the ceiling the Council would pay as £600, with £300 to be paid through Mrs M’s assessed contribution and a family top up.
31. The CCW updated Mrs X in late December 2019 and advised the support plan needed amending and authorising. This was completed in late December 2019. The support plan stated ‘Agreed to £600.00 (maximum LA would pay for live in carer) based on presenting needs. [Mrs M] previously had a privately arranged live in carer. [Mrs M’s] funds have depleted. To be able to continue with this chosen support, family have requested a direct payment’. It goes on to say ‘personal budget – Agency weekly cost £900 (live in carer), ceiling rate for res/dem -= £600 (maximum we would pay for live in carer)’. In the assessment of Mrs M’s needs and in the support plan there is no reference to residential care.
32. In January 2020 the Direct Payments Team advised it had not arranged the direct payments card. It said this was because the Team was not made aware of the revised figures amending the agreed Council budget from £850 to £600.
33. In mid- January 2020 Mrs M was admitted to hospital.
34. The CCW completed amended paperwork and the Council authorised the personal budget in early February 2020. A senior manager noted in the care records that Mrs M’s needs could be met in residential care. The Council arranged to pay the direct payment back to the end of December 2020. Around this time Mrs M was discharged from hospital. Following two falls her mobility had decreased and additional technology was provided to assist her at home.
35. Mrs X was able to access the funds on the direct payments card in early March 2020.
36. In March 2020 the CCW contacted Ms Y to review the care package. Ms Y reported the care package was working well. Ms Y reported Mrs M needed someone there all the time on a one-to-one basis. She therefore considered Mrs M’s care needs had increased and requested a review of the budget. She considered Mrs M would not get one-to-one care in a care home and asked that the budget be reconsidered.
37. Mrs M’s CCW was seconded to another role so the Council allocated a second CCW. The CCW spoke to Ms Y and updated the needs assessment in June 2020 but this did not result in an increase to the personal budget.
38. Mrs X complained to the Council in June 2020 about the delays in processing the direct payment and the level of the budget. She also raised concerns about inaccurate calculations and that Council letters required a response within seven days but often took three days to arrive causing extra stress for the recipient.
39. The Council sent Mrs X a response in mid-July 2020. Mrs X did not receive this. She chased the Council who sent her a response in mid-August. The letter set out that a funding request for £850 was declined as it was only required to pay ‘what we would reasonably expect to pay to meet your mother’s needs’. It said ‘we have assessed your mother as having 24 hour care needs which could reasonably be met in a care home placement’. As it could procure a care home placement for £600 it set the budget at that level. It said reaching this decision and rectifying ICT errors did take some time to resolve before the pre-paid card could be loaded and it apologised for this. It acknowledged there were some calculation errors which had resulted in unnecessary letters. It also noted the Financial Assessment Team had increased its response time to letters from 7 to 14 days. It apologised that the direct payment was not implemented as efficiently and accurately as desired.
40. Mrs X considered the response was inaccurate and incomplete and responded to the Council in late August 2020. She was not satisfied Mrs M’s needs could be met for £600, given her increased support needs following several falls. She did not receive a response and followed this up in mid-September. Mrs X was advised her email of late August was missed in error and so had been forwarded to relevant managers to consider as soon as possible. Mrs X did not receive a response so complained to the Ombudsman.
41. The Council wrote to Mrs X in February 2021 apologising for the delay in responding. It said the rate of £600 was the rate accepted at several care homes in the area. It noted the direct payment arrangement was working well and it was willing to reassess Mrs M if her needs had changed.

Findings

42. 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.
43. Mrs M’s needs assessment set out she required 24-hour care. 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. The additional cost of meeting Mrs M’s needs at home was significantly higher than the cost of meeting them through a residential placement.
44. When the Council officer spoke to Ms Y in October 2019, they explained the Council would fund up to the cost of a residential placement. It says this is because her needs could be met in residential care. The Council set the personal budget based on the cost that it could reasonably expect to pay in order to meet her needs. Mrs M had previously received 24-hour live-in care and the family’s preference was that she continued to receive this. The Council took this into account and agreed to fund a direct payment to allow this to happen, subject to the family paying a top-up. In line with its best interest decision the Council supported the decision for Mrs M to remain at home using direct payments and a top-up to fund this. The Council was not at fault.
45. The Council delayed allocating Mrs M a personal budget. The Council assessed Mrs M’s needs in early September 2019 but Mrs X was not able to use the direct payments until early March 2020. This was fault. The Council agreed to backdate the funds to late December 2019. However, that is still four months from the date of the assessment. I consider it would be reasonable for the Council to have carried out the needs’ assessment, completed the support plan and arranged the direct payments within four to six weeks of the initial request.
46. There were errors in the calculations provided to Mrs X. This was fault. In addition, the Council sent letters which did not arrive for three days but required a response with seven days. The Council has since amended its procedures to allow 14 days for responses to letters. This was appropriate. The Council was also at fault when it delayed responding to Mrs X’s complaint. These faults caused Mrs X avoidable frustration and time and trouble.
47. The Council reviewed Mrs X’s care needs in March 2020. This acknowledged her needs had increased. However, the Council failed to review the personal budget and this was fault.

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Agreed action

48. Within one month of the date of the final decision the Council has agreed to:
• reassess Mrs M’s personal budget from March 2020 when it assessed that Mrs M’s needs had increased;
• should the budget increase, establish how much Mrs M and family members have paid to cover the shortfall in the personal budget and repay this in full;
• backdate Mrs M’s personal budget to October 2019, around six weeks after it received the request for an assessment of Mrs M’s eligible care needs; and
• apologise to Mrs X and pay her £250 to acknowledge the frustration and time and trouble caused by the delays and administrative errors.
49. Within three months of the final decision, the Council has agreed to review the way it dealt with Mrs M’s direct payments to identify the lessons to be learnt and share this learning with staff.

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Final decision

50. I have completed my investigation. The Council was at fault causing injustice which it has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman