Summary: We uphold the complaint. The Council failed to offer a care home placement which met Ms Y’s needs, failed to revise her care and support plan or offer an appropriate personal budget. It also failed to offer a direct payment to be managed by her family. This caused a financial loss, avoidable distress and confusion. The Council will apologise, make payments to reimburse and take action described in this statement.

The complaint

1. Ms X complained for her relative Ms Y the Council failed to agree funding for live-in care and required her to move into a care home against her wishes.
2. Ms X also complained the Council did not complete a proper financial assessment as it required Ms Y to use all her savings.
3. Ms X said this caused avoidable distress, confusion and a financial loss.

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The Ombudsman’s role and powers

4. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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. 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)
7. An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.

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What I have and have not investigated

8. I investigated the first complaint. I did not investigate the second complaint because it is premature. Ms X needs to use the Council’s complaints procedure so it has a chance to consider and respond to her complaint. She can ask us to consider complaint two when she has received the Council’s final response.

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How I considered this complaint

9. I considered Ms X’s complaint to us and the Council’s response. I discussed the complaint with her.
10. Ms 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

Relevant law and guidance

11. 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)
12. The Care Act spells out the duty to meet eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18)
13. 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)

14. The Care Act explains the different ways a council can meet eligible needs by giving examples of services including accommodation in a care home or other premises or care and support at home (Care Act 2014, section 8)
15. 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)
16. 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)
17. A council should revise a care and support plan where circumstances have changed in a way that affects the plan. Where there is a proposal to change how to meet eligible needs, a council should take all reasonable steps to reach agreement with the adult about how to meet those needs. (Care Act 2014, sections 27(4) and (5))
18. The Mental Capacity Act 2005 and Code of Practice to the Act sets out the principles for making decisions for adults who lack mental capacity. An assessment of a person’s mental capacity is required where their capacity is in doubt (Code of Practice paragraph 4.34)
19. The courts have confirmed a person’s wishes are not the same as their needs and wishes are not the paramount consideration. A council must have ‘due regard’ to an adult’s wishes as a starting point, but social workers are entitled to exercise their professional skills and judgement in deciding how to meet eligible needs. (R (Davey) v Oxfordshire County Council [2017] EWHC 354 (Admin))
20. Statutory Guidance says a council may take into account its budget and finances, including ensuring the funding available to it is enough to meet the needs of the whole local population. It may balance the requirement to meet an individual’s eligible needs with its overall budgetary responsibilities. It can take case by case decisions 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 options for meeting needs. (Care and Support Statutory Guidance, 10.27)
21. Direct payments are cash payments a council gives instead of commissioning or arranging a person’s care. They give an adult with care and support needs flexibility to make their own care arrangements. (Care and Support (Direct Payments) Regulations 2014).
22. Guidance says a council must:
• Consider requests for direct payments at any time and have clear and swift processes to respond to requests (Care and Support Statutory Guidance, 12.10)
• Where an adult lacks capacity to request a direct payment, an authorised person can request one on their behalf (12.16)
• After considering the suitability of the person requesting the direct payment, the council must decide whether to provide one. The decision should be recorded in the care and support plan. If declined, the person should receive written reasons (12.18)
• Consider and conclude the matter in a timely manner (12.22)
23. Regulations set out how a council is to financially assess adults requiring care and support. If a person needing care and support at home has capital over £23,250 (known as ‘the upper capital limit’) a council may treat them as being able to afford the full cost of their care. (The Care and Support (Charging and Assessment of Resources) Regulations 2014) Regulation 12(2))
24. The Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 set out what people should expect from a council when it arranges a care home place for them. Where the care planning process has determined a person’s needs are best met in a care home, the council must provide for the person’s preferred choice of accommodation, subject to certain conditions. The council must ensure:
• the person has a genuine choice of accommodation;
• at least one accommodation option is available and affordable within the person’s personal budget; and
• there is more than one of those options.
25. However, a person must also be able to choose alternative options, including a more expensive setting, where a third party or, in certain circumstances, the resident is willing and able to pay the additional cost. This is called a ‘top-up.’

What happened

26. Ms Y has dementia and lives in her own home with a live-in carer that she and her family are paying for. Ms X is her attorney (This means Ms X has legal power to make financial and health and welfare decisions on Ms Y’s behalf.)
27. A social worker carried out a needs assessment in May 2023. This noted Ms Y’s family provided support and she had a live-in carer, which she was paying for and her savings had fallen to the upper capital limit. The assessment set out the family’s views on Ms Y’s needs, their concerns around incidents of self-neglect and injury and their strong preference that Ms Y should remain in her home with a live-in carer. The outcome of the assessment was Ms Y was eligible for social care. The assessor’s view was:
• 24/7 support was needed as she was at risk of self-neglect and could not make appropriate decisions regarding her personal care;
• She needed help with managing personal hygiene, toileting, dressing, maintaining nutrition, safe use of the home, maintaining a habitable home, sustaining relationships, accessing and using community facilities;
• Her needs could be met in a care home;
• Family provided care and support to assist the live-in carer. They are willing to continue this; and
• A day centre was offered, but declined because Ms Y does not like being around lots of people and gets agitated and frustrated.
28. Ms Y’s care and support plan described her desired outcomes and the care the Council proposed to provide to meet her eligible needs. The care and support plan said “she needed 24/7 care and support… her needs can be met in a care home where there are trained dementia staff.” The care and support plan went on to set out a home care package of four calls a day as follows:
• 45 minutes in the morning for personal and continence care, personal care, dressing, meal preparation, medication and making the bed;
• 45 minutes at lunch for meal preparation, medication and continence care;
• 45 minutes in the evening (tasks as above);
• 45 minutes for the above tasks plus getting ready for bed; and
• 2 hours a week for shopping cleaning and laundry.
• Total cost: 23.5 hours a week at £482.
• A direct payment had not been offered because Ms Y would not be able to manage it even with appropriate support.
29. A social worker carried out a mental capacity assessment. This noted Ms Y (or her family) had been arranging live-in care since October 2022. The outcome was she could not retain information a carer lived with her and so she was unable to use and weigh information as part of any decisions around her care and funding for it.
30. A social worker met with the family to make a decision in Ms Y’s best interests about her care and support. The record of the decision noted her family wanted Ms Y to remain at home with a live-in carer. It went on to summarise the benefits and burdens of each option:
• Live-in care: Benefits included being in a familiar environment, right to family life, not being deprived of her liberty. The burden was Ms Y could not afford this option and would be without care if the Council declined this option
• Residential placement: Benefits included access to staff all the time who are trained in dementia care. Burdens were she would lose autonomy and be deprived of her liberty.
31. The social worker concluded it was in Ms Y’s best interests to be in a care home with access to staff trained in dementia care. The family noted in emails about their complaint that the current live-in carer had qualifications in dementia care.
32. The social worker said in an email to Ms X in September “I have made my recommendation for 24/7 care and support which can also be met in a care home with trained dementia care staff. Considering that Merton do not fund live-in care, they agreed to four calls of care a day.”
33. The Council’s response to the complaint said:
• Initially, there was not enough evidence Ms Y required 24-hour care, either at home or in a care home. The private carer’s report clearly showed she did not have any nighttime needs;
• The Council initially considered Ms Y’s needs could be met with a package of home care and attendance at a day centre. The assessor was asked to visit Ms Y again to consider if she could be left safely between visits;
• The assessor provided evidence that Ms Y did need 24-hour care so presented the case to the forum who agreed a placement in a care home;
• The Council took into account current needs, future needs in terms of her diagnosis, safety and vulnerability and costs to the Council. The Council would need to fund more than one live-in carer to cover breaks, leave and so forth; and
• The Council considered a care home is the best option and took into account:
1. Her expressed preference to remain at home;
2. One-to-one care at home could be very restrictive;
3. Activities at home would be tailored to her needs and wishes;
4. Lack of specialist nursing care available at home;
5. A care home would provide specialism in dementia care and two carers if required for moving and handling;
6. Ms Y would need at least two live-in carers. This was a disproportionate spend as the benefits would not outweigh the risks;
7. A care home would provide the opportunity for her to settle before her condition declines;
8. A care home is less restrictive as there is freedom to walk unsupervised within the home and secure garden.
34. Unhappy with the Council’s response to the complaint, Ms X complained to us.
35. Responding to our enquiries the Council said it:

“ assessed Ms Y as having 24-hour care needs that could be more suitably met in a care home.  Consequently, a personal budget in the form of a direct payment could only be granted to the usual cost of a residential placement, which also includes non-applicable hotel costs.  Despite which, this would not be a sufficient sum to meet Ms Y’s needs over a 24-hour period outside a residential care home environment and the family would need to make a significant financial top up to ensure a safe level of care.  This is done in line with the Choice of Accommodation Regulations utilised when choosing a care home that exceeds the costs of those contracted by the Council. 

The normal council threshold for a residential care placement is £873.51 per week, whereas 24-hour care at home is at least £1368.50, depending on which care agency utilised.  The council did not offer this option because it believed a £500 per week top up would be unsustainable for the family.  However, if this is not the case then we are happy to agree this going forwards and would be prepared to back date it to the date of the 24-hour care home placement being agreed, which is 29th September 2023.”

Findings

36. There is fault by the Council which caused avoidable confusion, distress and a financial loss. I summarise this as follows:
1. The Council’s assessment and care and support plan are confusing and contradictory. The assessed eligible need is for 24/7 care and support in a care home placement, yet the care and support plan has four calls of home care. The Council has a duty to meet Ms Y’s eligible needs and four calls a day does not meet her eligible needs. This is not in line with Section 18 of the Care Act 2014.
2. The care and support plan sets out the cost to the local authority of meeting Ms Y’s needs at four care calls a day. But, as a personal budget statement, it is incomplete because it does not set out Ms Y’s contribution towards her care. And it should also set out the cost to the Council of providing 24/7 care in a residential dementia placement and it does not. This is a failure to act in line with Section 26 of the Care Act 2014.
3. The care and support plan should have been revised following the Council’s decision that Ms X’s needed 24/7 care in a care home. The failure to revise the care and support plan was not in line with Section 27 of the Care Act 2014.
4. The Council should have offered a specific care home placement in the care and support plan with a vacancy that was prepared to accept Ms X to be in line with the Choice of Accommodation Regulations described in paragraph 24.
5. A social worker said the Council did not fund live-in care. This fetters discretion. We are critical of councils which make blanket statements, and it indicates a failure to consider individual circumstances.
6. The Council failed to offer a direct payment. It said on the care and support plan that a direct payment was not an option because Ms Y could not manage one. However, Ms Y has an attorney to manage her finances and so the Council should have taken this into account before it decided she could not have a direct payment. The Council failed to act in line with Care and Support Statutory Guidance as I have set out in paragraph 22.
37. Although I have found fault by the Council, it is entitled to limit funding to the cost of a residential placement on the basis that it has considered Ms Y and her family’s wishes and preferences. The court confirmed in the Davey case (paragraph 19) that a person’s wishes are not the same as their needs and are not the paramount consideration. Councils are permitted to take into account the relative costs of each option when making decisions about care.

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Agreed action

38. Within one month of my final decision, the Council has agreed to the following:
1. An apology in line with our published Guidance on Remedies;
2. A payment of £250 to Ms X for her avoidable distress;
3. A review of Ms Y’s care and support plan and revisions to it taking into account any changes in Ms Y’s care and support needs since the most recent care and support plan;
4. Discuss and consider the family’s financial position with them going forward because it is likely they will need to pay towards a live-in care package. The Council needs to be satisfied a live-in care arrangement is financially sustainable; and
5. Backdate direct payment funding to reimburse for services Ms Y was entitled to receive. The payment is £43,675.50 from 19 June 2023 (the date the finance team received the completed financial assessment form) to date. In line with our Guidance on Remedies, this reimbursement puts Ms Y into the position she would have been, ‘but for’ the fault.
39. The Council should provide us with evidence it has complied with the above actions in paragraph 38 (a) to (e).

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Final decision

40. The Council failed to offer a care home placement which met Ms Y’s needs, failed to revise her care and support plan or offer an appropriate personal budget. It also failed to offer a direct payment to be managed by her family. This caused a financial loss, avoidable distress and confusion. The Council will apologise, make reimbursement payments and take action described in this statement.
41. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman