Summary: Mrs X complained on behalf of her mother, Mrs Y, that the Council went back on an agreement to pay for her live-in care which the family funded while it made decisions about her permanent care and support package. She also says it acted unreasonably by using a care home nearly 50 miles from Mrs Y’s home when completing a cost comparison to calculate how much it was willing to pay for her care. We found there were errors in the calculation of Mrs Y’s direct payment and failures in communication causing confusion. The Council also raised Mrs X’s expectations by agreeing to refund the cost of live-in care but then failed to do so. It has offered a satisfactory remedy for the injustice caused.

The complaint

1. Mrs X complains on behalf of her mother, Mrs Y, that:
• the Council went back on an agreement to pay for Mrs Y’s live-in care which the family funded while the Council made decisions about her permanent care and support package and, instead, paid only the cost of four visits per day;
• the Council acted unreasonably by using a care home rate based on a care home nearly 50 miles from Mrs Y’s home when completing a cost comparison to calculate how much it was willing to pay for her ongoing care package; and
• every four weeks, the family take over Mrs Y’s care to give the live-in carers a break. This results in excess funds in the direct payment account which the Council recoups from time to time. However, Mrs Y is required to continue her weekly contribution of £433.18 even when her care is being provided by relatives. Mrs X says Mrs Y should receive a refund of a proportion of her contributions for the periods when care is not being provided by the live-in carer.
2. Mrs X says the Council’s actions have caused the family distress, inconvenience and financial loss. She wants it to refund the cost of the live-in care she funded while it was making decisions about Mrs Y’s care and support package as previously agreed. She also wants it to complete a new cost comparison based on the care home rate for a care home in Mrs Y’s geographical area and calculate what refund Mrs Y is due for contribution she has made towards the costs of her care during periods when the care was delivered by relatives rather than the live-in carers.

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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 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)
4. 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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How I considered this complaint

5. I have considered all the information provided by Mrs X, made enquiries of the Council and considered its comments and the documents it provided.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Care needs assessment

7. 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. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
8. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.

Care Plan

9. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan. The 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. When preparing a care and support plan the council must involve any carer the adult has.

Charging for social care services

10. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
11. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.

Personal Budgets

12. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. 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. It should confirm the final amount of the personal budget through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs.
13. There are three main ways a personal budget can be administered:
• as a managed account held by the council 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; or
• as a direct payment. (Care and Support Statutory Guidance 2014)

Direct payments

14. 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. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.
15. Councils must tell people during the care planning stage which of their needs direct payments could meet. However, councils must consider requests for direct payments made at any time and have clear and quick procedures in place to respond to them.
16. After considering the suitability of the person requesting direct payments against the conditions in the Care Act 2014, the council must decide whether to provide a direct payment. In all cases, the council should consider the request as quickly as possible.
17. The council must provide interim arrangements to meet care and support needs to cover the period in question. Where accepted, the council should record the decision in the care or support plan. Where refused, the council should explain its decision in writing to the person who made the request. It should also tell the person how to appeal against the decision through the local complaints procedure. (Care and Support Statutory Guidance 2014)

Key facts

18. Mrs Y is elderly. She was living at home and being supported by her family.
19. In August 2022 the Council received a referral to complete a care needs assessment for Mrs Y. The case was allocated to a trainee social worker, Officer A, in September 2022.
20. On 28 September Officer A visited Mrs Y to begin a Care Act assessment.
21. The assessment was completed on 25 October. It stated Mrs Y’s health had declined and the family had made a private arrangement for live-in care. It recommended 24-hour care.
22. On 1 November Officer A visited Mrs Y to re-assess her after Mrs X said her health had declined further. She was experiencing regular falls and Mrs X was staying with her but needed to return home.
23. An occupational therapist (OT) visited and recommended equipment to reduce the risk of falls.
24. In late November Mrs X reported that Mrs Y’s condition had improved. Officer A recorded that Mrs Y had an eligible need for a care home. But Mrs X said she would prefer live-in carers so Mrs Y could remain in her own home. She told Officer A she was paying £1300 per week for live-in care.
25. Officer A asked the Brokerage team to obtain cost comparators for a residential extensive care home placement. The Brokerage team told Officer A it had obtained quotes of £1300 but said these were “just guides to the costs”.
26. On 6 December Officer A completed a draft support plan recommending 24-hour care.
27. On 8 December the adult social care forum (‘the forum’) considered the case and recommended a mental capacity assessment be completed and a best interest meeting be held to weigh up the options of live-in care and a care home placement. The case should then return to the forum for further consideration.
28. In late December the OT reported that Mrs Y’s condition had improved and the falls were related to low potassium levels which had been resolved.
29. The forum considered the case again. It did not agree to live-in care and recommended Officer A consider alternative options to meet Mrs Y’s eligible needs. These included: installing a falls sensor; four daily care visits; a move to an extra-care housing facility; obtaining evidence of the need for overnight care.
30. A senior social worker, Officer B, telephoned Mrs X to discuss the options. Mrs X said she would prefer Mrs Y to remain in her own home. It was agreed that ‘Just Checking’ equipment would be installed to obtain evidence of Mrs Y’s night movement. The equipment produces a daily report from which the Council could ascertain how many times Mrs Y was getting up in the night and where she went.
31. On 1 January 2023 Officer A prepared an updated support plan for four daily care visits.
32. On 11 January Mrs X complained about the delay in assessing Mrs Y for live-in care causing stress to the family. She said they were running out of funds and wanted the equivalent funding for a care home place to spend on live-in care.
33. On 19 January the Council responded to Mrs X’s complaint explaining that, as Mrs Y’s health had deteriorated during the assessment process requiring input from an OT, officers needed to wait to see if the equipment installed was enough to address the identified risks before completing her support plan. It said that, once it had established Mrs Y’s overnight care needs using the information from the Just Checking device, it could complete the support plan and would backdate the funding to the date of the assessment in September 2022. The Council accepted there had been a lack of clear communication and apologised for this. It said it would discuss with Officer A the importance of giving regular updates and ensure this was discussed in the next team meeting to remind staff of the importance of keeping people informed of progress.
34. On 27 January Officer B sent an email to Mrs X saying that Just Checking had provided evidence that Mrs Y did get up in the night to use the bathroom but there was no evidence of her going downstairs or out of the house. She had also spoken to Mrs Y’s live-in carer to ascertain what support she was providing during the night. She said the evidence indicated Mrs Y did not require live-in care support and her current assessed care needs could be met at home with four care visits a day and a falls sensor could be put in place in case of falls.
35. On 1 February 2023 Officer B sent an email to Mrs X confirming funding had been agreed for four visits a day. She also said, “We will agree a one-off backdated payment to cover the live-in care costs from the date of our assessment 28 September 2022”.
36. The Council arranged for a care agency to assess Mrs Y for four visits per day. Mrs X declined the assessment and asked the Council to confirm the direct payment amount for the equivalent of four daily care visits.
37. On 23 February Officer B explained Mrs Y had been assessed as having care needs that could be met with four visits per day and the Council had an agency with capacity to pick up a new care package. It would arrange this as soon as possible and would then “be able to provide a backdated one off payment for costs incurred for live in carer while awaiting us sourcing a new care provider”.
38. On 2 March Mrs X told the Council the care package it had put in place was unacceptable. She requested direct payments equivalent to the cost of the care package so she could arrange a private live-in carer. She also requested back pay for the 20 weeks live-in care that the family had funded while waiting for the Council to complete the Care Act assessment.
39. Officer A wrote to Mrs X confirming Mrs Y had been assessed as not having capacity to make decisions regarding her care and support needs and how these were met. So, a best interest decision needed to be made. She asked Mrs X which of the following options she believed to be in Mrs Y’s best interest:
• living at home with four visits a day from a care provider; or
• live-in care via a direct payment with the Council funding the equivalent of four visits and the family paying a top-up.
40. Mrs X said the only way to keep Mrs Y safe and well was to have live-in care. She said Mrs Y was suffering from hallucinations because of her dementia and needed constant reassurance. She felt the only way to move forward with the funding and backpay was to accept the second option, but she would continue to ask for a re-assessment because she believed Mrs X required live-in care.
41. On 14 March Officer B visited Mrs Y to complete a re-assessment.
42. A new Care Act assessment was issued on 23 March which assessed Mrs Y as requiring 24-hour care. Officer B sent a copy to Mrs X and confirmed that Mrs Y would receive a direct payment for the equivalent cost of an available care home.
43. On 30 March the forum agreed Mrs Y required 24-hour care.
44. On 18 April Officer B wrote to Mrs X stating that funding had been agreed and the back payment would be as follows:
• £441 per week for the period 1 November 2022 to 14 March 2023 (the equivalent of the Council’s contribution towards the cost of four care visits a day);
• £1300 per week for the period 14 March to 28 March 2023 (following the reassessment which found Mrs Y needed 24-hour care); and
• £900 per week from 28 March 2023 onwards (the equivalent cost of the available care home placement).
45. Mrs X said this was not what she had been promised. She said the Council had agreed to refund the cost of live-in care from the date of the assessment (28 September 2022) until at least the date that it arranged the care package (23 February 2023). She also queried why the rate had changed from £1300 to £900 and requested evidence as to which care homes in Mrs Y’s area had been found for that rate.
46. Officer B responded saying Mrs Y had been assessed as needing four care visits per day. Mrs X had been informed that the Council would pay an amount equivalent to the cost of this and she had agreed to fund the additional amount for the cost of the live-in care. However, Mrs Y was re-assessed on 14 March 2023 as requiring 24-hour care so, from this point, the Council would pay the full amount of the live-in care until it found an available care home which could meet Mrs Y’s needs. On 28 March 2023 the brokerage team had identified three care homes that could meet Mrs Y’s assessed care need. The most equitable was one charging £900 per week. So, from this date, the Council would pay £900 per week as a direct payment for Mrs X to put towards the cost of live-in care. She said the Council would not pay the full live-in care costs for the period 28 September 2022 to 23 February 2023 as requested by Mrs X because Mrs Y had been assessed as not having overnight care needs during this period and her assessed care needs could be met with a care package of four visits a day.
47. On 20 April 2023 an updated support plan was issued. The Council agreed to pay direct payments of £900 per week from 28 March 2023.
48. On 25 April Mrs X told the Council she disagreed with the calculations of the backpay. She later complained to us.

Analysis

Agreement to pay for Mrs Y’s live-in care

49. Mrs X says the Council went back on an agreement to pay for Mrs Y’s live-in care which the family funded while it made decisions about her permanent care and support package and, instead, paid only the cost of four visits per day. She wants it to refund the cost of the live-in care for this period as previously agreed.
50. In response to my enquiries, the Council says:
• it accepts there was a prolonged period of assessment from when Mrs Y was initially re-assessed on 1 November 2022 to when it was established that her needs could be met with four daily home care visits at the end of January 2023. It also accepts the Care Act assessment dated 25 October 2022 was not updated to reflect this.
• it accepts Officer B exchanged emails with Mrs X indicating that the Council would refund the cost of live-in care which resulted in the family incurring the costs of live-in care from 1 November 2022 to 14 March 2023. For this period, the Council made payments based on £441 per week (the cost of four daily care visits). It has now agreed to pay the average cost of a specialist residential care home (which, on 1 November 2022, was £1042 per week) for this period.
• a payment of £1300 per week was arranged from 14 March 2023 (when it was established that Mrs Y had 24-hour care needs) to 28 March 2023 when the Brokerage team were able to provide an updated quote based on the new needs using the comparator cost of £1300. The Council says this quote was made in error as it would normally negotiate costs with providers and would not expect to pay this rate for residential care. However, in this case, negotiation did not take place and alternatives were not sought. It accepts this created additional confusion for Mrs X and has apologised for this.
• from 28 March 2023 £900 per month has been paid into the direct payment account based on the equivalent cost of the comparison care home available on that date. The Council accepts errors in communication and in the calculation of the direct payment led to confusion and has agreed to increase the direct payment to £1042 per week which is the average cost of a residential placement in the county today. This will take effect immediately and will be backdated to 28 March 2023.
51. The Council has apologised for its failings and the confusion which led Mrs X to believe that funding had been agreed for live-in care. It accepts the issue should have been fully addressed and resolved via its complaints process and says this has been raised with the staff members concerned. In recognition of the distress caused, the Council has offered to pay Mrs X £250.
52. I am satisfied the Council’s agreement to increase the direct payment to £1042 per week and backdate this increase puts Mrs Y back in the position she would have been in but for the Council’s fault. I do not consider it appropriate to recommend the Council pays £1300 per week as suggested by Mrs X given that the Brokerage team told Officer A in November 2022 that it had obtained quotes of £1300 but these were “just guides to the costs” and the Council says it would have negotiated and would not have expected to pay £1300 for residential care. However, I find the emails Officer Be sent to Mrs X in February 2023 caused confusion and raised her expectations and she was put to time and trouble in trying to resolve the matter. I consider the Council’ s offer to pay her £250 is an adequate remedy for this injustice.

Cost comparison

53. Mrs X says the Council acted unreasonably by using a care home rate based on a care home nearly 50 miles from Mrs Y’s home when completing a cost comparison to calculate how much it was would pay for her ongoing care package. She wants the Council to complete a new cost comparison based on the care home rate for a care home in Mrs Y’s geographical area.
54. The Council says comparator costs are time specific so it cannot obtain new costings. It also says it will not consider the costing of £1300 obtained in November 2022 as this was obtained following the assessment completed on 1 November 2022 based on the need for 24-hour care during a time when Mrs Y was acutely unwell. It says that, when discussed at the forum in December 2022, this assessment was found not to be evidence based and further actions were recommended to establish Mrs Y’s care and support needs. It was then established that her needs could be met with four daily home care visits. Mrs Y’s needs subsequently changed and a re-assessment was completed on 14 March 2023 which established that she had experienced a progression in her condition and now required 24-hour care. The family wanted Mrs Y to remain in her own home, so the Council obtained cost comparators for residential specialist care homes ranging between £900 and £1200 per week.
55. The Council says it considered Mrs Y’s preferences, including the impact of the distance of the care home in maintaining relationships. As her daughters travel from some way out of the area, officers considered it reasonable that they could travel to any location within Oxfordshire. They obtained a quote from a care home 44 miles from Mrs Y’s home address which had vacancies and was considered to meet her needs whilst providing the best value. So, they used the rate of £900 as a comparator with the same costs being awarded to Mrs Y to use as a direct payment towards the cost of live-in care.
56. I find the decision to use a care home 44 miles from Mrs Y’s home as a comparator was a matter for officers’ professional judgement. However, they should have considered the impact of the distance on Mrs Y’s ability to maintain relationships with her social network and not just with her daughters.
57. The Council accepts there were errors in communication and in the calculation of the direct payment leading to confusion. In recognition of this, it has offered to raise the direct payment amount from £900 to £1042 per week which is the average cost of a residential placement in the county today. This will take effect immediately and will be backdated to 28 March 2023. I am satisfied that this is a satisfactory remedy for the injustice caused.

Contribution towards the costs of care

58. Mrs X says, every four weeks, the family take over responsibility for Mrs Y’s care to give the live-in carers a break. This results in excess funds in the direct payment account which the Council recoups from time to time. However, Mrs Y is required to continue her weekly contribution even when her care is being provided by relatives. She says Mrs Y should receive a refund of a proportion of her contributions for the periods when care is provided by family instead of the live-in carer.
59. Mrs Y’s personal budget of £900 per week was made up of her assessed contribution of £433.18 per week and £466.82 funded by the Council.
60. The Council says it agreed in July 2023 that, for periods when relatives provided care instead of the live-in carers, they could use the direct payment to fund their travelling costs to Oxfordshire. It says the family has an agreement with the live-in carers that they are paid only for the days they work. They are not paid during any breaks.
61. The Council says it has not claimed back any surplus funds since the direct payment was set up. It says it agreed any excess funds already accrued in the account could be used to fund previous travel costs. Mrs X has transferred £542.63 for costs backdated to November 2022 to cover five trips and has confirmed she will continue to transfer money for future trips. The Council says it is not usual for it to fund travel but, as the family are providing care and support in line with Mrs Y’s support plan, it considered this to be a flexible use of the direct payment to meet her eligible care needs.
62. I find no grounds to criticise the Council in this regard.

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Final decision

63. I find the Council was at fault in that there were errors in the calculation of the direct payment and failures in communication causing confusion. The Council also raised Mrs X’s expectations by agreeing to refund the cost of live-in care for the period 1 November 2022 to 14 March 2023 but then failed to do so.
64. I am satisfied the Council has proposed a satisfactory remedy for the injustice caused.
65. I do not uphold the remainder of Mrs X’s complaints.
66. I have completed my investigation on the basis that I am satisfied with the Council’s proposed actions.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman