Summary: Ms C complains the Council failed to provide a direct payment to pay towards the cost of a live in carer for her mother, Mrs D. The Council is at fault for not properly considering Ms C’s request. However we cannot say on balance this would have caused Mrs D additional financial injustice. To remedy the complaint the Council has agreed to apologise to Mrs D, make a symbolic payment to Ms C for her time, trouble, and distress. It will also remind and where necessary provide staff training about the completion of assessments and setting personal budgets.

The complaint

1. The complainant who I call Ms C, complains on behalf of her mother who I call Mrs D. Ms C complains the Council failed to provide services to meet Mrs D’s needs in 2020; and its 2022 care assessment of Mrs D is wrong.
2. Ms C also complains about care at a residential care home in 2020 which she says was inadequate and it failed to properly investigate and process her complaint.
3. Because of these failures Ms C says her mother had to release extra equity from her property to pay for care needs which were the responsibility of the Council. Ms C says the Council’s current assessment of four calls a day, is wrong and will cause Ms C having to pay for extra care within her home. Ms C says both she and her brother have had time, trouble, and distress in organising and paying for care, and the frustration the Council misadvised them.

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The Ombudsman’s role and powers

4. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. If we are satisfied with an organisation’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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What I have and have not investigated

8. I have not investigated the care provided by a care home in 2020. This is because the Council says this was a privately arranged and funded placement and the care home was not acting on behalf of the Council. I cannot investigate the Council for actions it had no responsibility over.
9. I have exercised discretion to consider matters about Council decisions about direct payments which are more than 12 months old. This is because the matters complained about were ongoing and continuing, and there are documents which date back to the Council’s decisions which I can use in my investigation.

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How I considered this complaint

10. I read the complaint and the associated documents. I spoke with Ms C and made enquiries of the Council. This included asking for documents and specific questions about its actions. I considered:-
• Council case recording, care assessments, financial assessments, support plans for Mrs D, and complaint correspondence;
• Mental Capacity Act 2005 and the associated code of practice;
• Care Act 2014 and associated Care and Support Statutory Guidance.
11. Ms C and the Council had an opportunity to comment on my draft decision. I considered any comments received making a final decision.

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What I found

Background information

12. Mrs D lives in the community and has both physical health problems and dementia. Following a stay in hospital in 2020 Mrs D needed extra care so that she could return home.

What should have happened

Assessment

13. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs.

Support Plans and Personal Budgets

14. The Care Act 2014 gives councils 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 needs 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.
15. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person. 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.

Meeting needs

16. Paragraph 10.27 Care and Support Statutory Guidance says, “In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, ….. 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.”

Direct payments

17. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs.

Mental Capacity Act

18. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves.

Best interest decision making

19. 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. The decision-maker also must consider if there is a less restrictive choice available that can achieve the same outcome.
20. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

What happened

21. In November 2020 Ms C asked the Council several times for support to pay for a live in carer when Mrs D returned home. The Council responded saying it was not an option. On 30 November the social worker asked their manager to approve a direct payment to cover four calls per day. The social worker said they told Ms C she could not use the direct payment, if agreed, to pay towards a live in carer. The request said the social worker had assessed Mrs D as not having capacity to decide about her care, and it was in her best interests to live in her home.
22. The manager responded agreeing a £275.52 weekly direct payment for four calls per day with a client contribution of £94.40. This however was never processed. The Council through its brokerage system helped Ms C find a live in carer.
23. Shortly afterwards in December 2020 the Council completed a review of Mrs D’s needs. It decided Mrs D needed 24-hour care. It told Mrs D she could not have a direct payment to pay towards the live in carer as it would not meet all Mrs D’s eligible needs and offered residential care. Ms C helped Mrs D release £60000 equity from her home which she used to pay privately for a live in carer as she did not want to move into a care home.
24. In November 2021 Ms C contacted the Council to ask for an assessment to receive direct payments. Council officers spoke to Ms C in January 2022 and told Ms C that as her mother had over the £23250 threshold for financial help from the Council, it could not fund her care. The Council offered to assess Mrs D’s needs; but Ms C declined.
25. In August Ms C asked for a reassessment of Mrs D’s care needs. In November the Council assessed Mrs D could have a support package in the community via a direct payment to cover four calls per day. During the assessment process it also decided it was in Mrs D’s best interests to remain living in her own home. The Council agreed a direct payment which it backdated to 3 August 2022. Ms C disputes this assessment and says Mrs D’s care needs have not decreased and she needs 24 hour care.
26. The Council responded to my enquiries and said it made an error for the period 6 November 2020 to 9 December 2020 where it assessed Mrs D as needing care in the home. It says it should have paid Mrs D a direct payment during that period. It has agreed to refund Mrs D the amount she should have received as set out in paragraph 22 above.
27. However, the Council maintains that once it assessed Mrs D as needing 24 hour care it could consider its resources when deciding how to meet needs; and in this case, considered residential care to be the most cost effective option to meet Mrs D’s 24 hour care needs. The Council says it was also precluded from making a direct payment between December 2020 and August 2022 as it had assessed a need for residential care and the payment would not cover Mrs D’s assessed 24 hour care needs. It also says it cannot offer a direct payment towards permanent residential care as this is unlawful.

Was there fault causing injustice?

28. The Council did not follow the Care and Support Statutory Guidance when it initially assessed Mrs D as needing care in her home on discharge from hospital. It failed to:
• set an individual budget;
• create a support plan which identified Mrs D’s desired outcomes and how these outcomes could be achieved;
• make a direct payment to Mrs D for the period when it had assessed her as only needing care at home.
29. Because of these early failures Mrs D did not receive a direct payment she was entitled to. The Council has agreed to refund these payments and I consider this is a suitable remedy for this part of the complaint.
30. On 9 December 2020 the Council says it assessed Mrs D as needing residential care and therefore could not make a direct payment for Mrs D to pay towards the live in carer. I consider the Council was at fault as it failed to:
• properly reassess Mrs D’s care needs and consider the risk to Mrs D’s health of moving into residential care;
• properly consider what was in Mrs D’s best interests and was the least restrictive way of meeting her care needs;
• set an individual budget;
• create a support plan which included Mrs D’s preferences and goals and include those of her family;
• fettered its discretion. The Council says the Care Act prevents councils from making direct payments for residential care. While this is correct, the payment Ms C requested was not for care in a residential care home but in the community. Mrs D released funds from her property for this purpose only, which the Council was fully aware of then and later. The Council’s review identified the live in carer was meeting all Mrs D’s needs and had no concerns;
• paragraph 10.27 specifically says, “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.” The Council failed to properly consider the request and provide a reasoned decision to Ms C.
31. The failure to properly assess Mrs D in December 2020 casts doubt on whether she needed 24 hour care or whether as later assessed, the Council could meet her needs in the community.
32. Had the Council properly reassessed Mrs D’s needs and considered all the relevant factors, it could have decided on either 24 hour care in Mrs D’s home, four calls a day in the form of domiciliary care, or 24 hour care in a residential care home.
33. It is difficult to say now what the Council’s decision would have been had it acted correctly, but Ms C has the uncertainty the outcome may have been different.
34. Ms C would like the Council to reimburse Mrs D for the direct payment she should have received at the time. I am unable to make this recommendation as even if the Council had properly concluded Mrs D should have a direct payment for the domiciliary care between December 2020 and August 2022 Mrs D would not have benefited from the payment. This is because Mrs D released funds from her property to pay for live in care which resulted in savings of more than £23250. This would have resulted in Mrs D having to pay a charge to the value of the full cost of the direct payment.
35. Therefore, even if I could make a balance of probability decision on the outcome, I would be unable to say Mrs D suffered any financial injustice.
36. Ms C argues Mrs D continues to need 24 hour care and the Council’s current assessment is wrong. Ms C says Mrs D’s needs have not decreased over the last two years and therefore does not agree with the current assessment.
37. The Ombudsman cannot challenge a professional judgement unless there is procedural fault. I have considered the Council’s current assessment and find it followed the statutory guidance outlined above. The key difference between the assessments revolves around nighttime needs. The Council’s assessment in 2022 did not identify significant nighttime needs and therefore assessed Mrs D as not needing 24 hour care. I have also found fault in the way the Council assessed Mrs D in 2020, the outcome of which is therefore questionable. While I understand Ms C’s frustration, I cannot find fault with this element of the complaint. If Ms C considers there are errors in the current assessment or that Mrs D’s needs have changed; she can ask the Council to consider her additional comments or ask for a reassessment.

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Agreed action

38. I have found fault in the actions of the Council which has caused Mrs D and Ms C injustice. The Council has agreed to take the following actions to remedy the complaint.
39. Within one month of the final decision:
1. apologise to Mrs D and Ms C for the faults I have identified in this complaint;
2. pay £500 to Ms C for her time, trouble, frustration and confusion caused by the Council’s failures;
3. as agreed pay a refund for the period 6 November 2020 and 9 December 2020.
40. Within three months of the final decision
1. remind staff and if suitable provide training about completing assessments, setting personal budgets and support planning which is holistic and considers individual preferences and goals;
2. remind staff and if appropriate provide training about the importance of best interest decisions and considering the least restrictive options when considering how to meet needs.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. I have found fault causing injustice. I consider the agreed actions above are suitable to remedy the complaint and have completed my investigation and closed the complaint on this basis.

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Investigator's decision on behalf of the Ombudsman