Summary: Mr X complained that the Council delayed completing a financial assessment when the late Mrs A’s assets fell below the threshold amount and then gave incorrect information about the amount it could fund, as well as involving the family in care home assessments for the purpose of establishing a budget. We found fault by the Council which caused injustice to Mrs A’s family and the Council has now agreed a remedy.

The complaint

1. Mr X (as I shall call the complainant) says the Council delayed in completing a financial assessment when the late Mrs A’s assets fell below the threshold amount for self-funding. Subsequently the Council restricted the care package funding to what it says was the equivalent residential care package, while also saying it would have funded the whole package at home as commissioned care.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
5. Mr X and the Council had an opportunity to comment on my draft decision. I considered comments before making a final decision.

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What I found

Relevant law and guidance

6. 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)
7. Any capital threshold for the purpose of means-testing for non-residential care should not be lower than that for the residential care means test, and the value of the service-user’s home cannot be included in the means test for this type of care.
8. The Care and Support Statutory Guidance says “Local authorities should ensure that the method used for calculating the personal budget produces equitable outcomes to ensure fairness in care and support packages regardless of the environment in which care and support takes place, for example, in a care home or someone’s own home. Local authorities should not have arbitrary ceilings to personal budgets that result in people being forced to accept to move into care homes against their will.”
9. If a council agrees that needs can be met at home, it must be satisfied that the personal budget is an amount sufficient to meet the person’s care and support needs which the local authority is under a duty to meet. The care and support plan should set out the agreed expectations for family to provide support around that funded by the council.
10. Where somebody provides or intends to provide care for another adult and it appears the carer may have any needs for support, the council must carry out a carer’s assessment. A carer’s assessment must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
11. As part of the carer’s assessment, the council must consider the carer’s potential future needs for support. It must also consider whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)

What happened

12. Mrs A was an elderly lady with dementia. She lived at home with her son Mr K who provided a considerable amount of care for her: she self-funded a live-in carer. (Mr X, who made the complaint on Mr K’s behalf, is Mrs A’s son in law).
13. Mr K first contacted the Council in March 2023 to let it know that Mrs A’s funds would fall below the threshold at which she would be able to self-fund her care. There were several more calls, and Mr K submitted a financial assessment form in June (when Mrs A’s assets were still above the threshold amount), before the Council arranged a home visit to undertake a care needs assessment in October 2023. The Council acknowledges there was “a high volume of referrals, staff absence and sickness” during this time which delayed appointments.
14. The social worker who carried out the care needs assessment included in her assessment report the statement “(Mrs A) would like to stay in her home and receive care from her current care agency. This would be my recommendation as this would result in all (Mrs A’s) care and support needs being met. This also reflects (Mrs A's) wishes”.
15. The social worker also asked for a fresh financial assessment to be completed.
16. Mr K became concerned about the delay in arranging funding and the offer being made by the Council towards the cost of Mrs A’s care. Mr X says the Council, despite the recognition that care at home met Mrs A’s needs and was in line with her wishes, insisted on obtaining assessments from care providers to obtain a ‘comparative cost’. Mr K complained to the Council.
17. The Council responded in December. The Head of Adult Services responded in December. She apologised and said it had been an error for the social worker to ask for a fresh assessment and only updated bank statements were required. She said the Council’s process for determining its financial contribution towards the costs of care involved “sourcing a comparative cost from an available provider”. She said “where the cost of a chosen care provider exceeds the cost at which the council could meet the need, the third party top up is applied. However, you can choose to use the personal budget to towards the cost of your chosen provider, but Buckinghamshire Council would not fund additional respite as the personal budget is intended to meet your mothers 24-hour care needs”.
18. The Council agreed to pay a weekly cost of £1290, the weekly cost of the care currently being provided by a live-in carer. It also undertook a carer’s assessment of Mr K and offered to pay a carer’s direct payment of 4 hours a week at the same rate (£24 an hour) as the care agency charged, in recognition that Mrs A had some nighttime needs.
19. Mr X says that Mrs A’s needs increased over the next few months and an NHS Continuing Health Care assessment was undertaken, although Mrs A was not found to be eligible for NHS funded care at that point. The Council also undertook a reassessment of her needs in February 2024 and the outcome remained the same.
20. Mr K complained again in February 2024. The Head of Adult Services responded in March and referred to the assessment that Mrs A required “a 24-hour care setting”. She said the Council had suggested that he could use the direct payment hours flexibly which would enable him to have a longer break every four weeks. She said “I am confirming that Adult Social Care are able to fund (the care agency) at a cost of £1290 a week. This payment will be backdated to 19th July 2023, which was when the financial assessment was completed. We will also continue to provide you with a weekly Carers Direct Payment of £96 per week to enable you to have a break from your caring role. As discussed, this will be reviewed after 6 weeks. As a result of the above, there is a back payment due to you in the sum of £36,954.40.”
21. Mr K replied that nowhere in the assessment was the phrase “24-hour care setting” used, but in fact the assessment recommended that Mrs A continue to receive care in her own home. He said it was inappropriate for the Council to try and benchmark against a package which had not been recommended as an appropriate placement. He also said that in total 5 care homes had been in touch with him without prior warning for the Council to establish a comparative price.
22. The Council sent the reassessment to Mr K in April. He said his brother in law, Mr X, would take over the correspondence on his behalf.
23. Mr X met officers in May after he had responded to the reassessment pointing out that Mrs A’s risk of falls was significantly greater than the assessment implied, that the risk of malnutrition as stated in the assessment did not reflect the level of need assessed during the CHC assessment, and asking that greater weight be given to Mr K’s needs as a carer.
24. The Head of Adult services apologised for some errors and factual inaccuracies which had been present in her letter: she agreed to amend that and reissue it. She also explained that the Council was not seeking to make Mrs A move into a care home but was trying to establish a cost for her care. She said she would pursue the uplift in the payment to the care agency, which had raised its fees. Subsequently she said there was a corporate decision not to increase Direct Payments.
25. Over the next few months Mrs A’s needs increased further. The Council carried out a carer’s assessment for Mr K. It recommended a 2 hour daily break for the carer to reduce fatigue and a 4hour respite sitting service a week. A further CHC assessment was undertaken in August but Mrs A was still not deemed to be eligible. The personal budget was increased again in September 2024 to £1446 (including £96 a week for 4 hours flexible sitting service for respite) and backdated to 1 April. The backdated payments were made on 6 September. Mrs A sadly died later that month.
26. The Council responded further to the complaint in August. The Head of Adult services said if Mr K had decided to accept the same care package as a commissioned service, “the full uplifted cost would have been covered, however this was rejected and Mr K continued to want a DP, which is what we have provided”. She went on “ When we consider (Mrs A’s) 24-hour care and support needs alongside (Mr K’s) need for respite the Council’s position would be to offer a DP at the average bed rate for a care home placement that could meet (Mrs A’s) needs with the additional funds for the respite element. If people wish to remain living at home with a live in package of care this would usually incur a ‘top up’”.
27. Mr X complained to us. He said there had been delays and inadequate assessments by the Council which had failed to provide a proper budget for night time care and respite for Mr K. He said the Council had not amended its incorrect letter as promised and there had been no independent review of complaints. He said the failures had increased Mrs A’s anxiety and limited some of the care arrangements which had been made. It had also failed to provide proper respite for Mr K.
28. The Council acknowledges that it was factually incorrect to say that a commissioned service would have been increased whereas a Direct Payment would not. It says “Direct Payments were included as part of the annual uplift for 2024-25, based upon a case-by-case basis. This reflects the variance of contractual relationships clients may have with individuals/providers to ensure costs of eligible care and support needs are met….. The Council is required to ensure that the Direct Payment is sufficient to meet (Mrs A’s) eligible needs.”
29. The Council also accepts that “The Direct Payment figure and use of a care home cost as a comparative cost was incorrect”. It says, “we have also introduced a weekly Finance Surgery for all staff including the Finance team, and a dedicated finance network channel to ensure communication and queries are responded to in a timely manner. We are in the process of issuing new guidance for staff in relation to residents whose funds become depleted”. The Council apologises for the inaccurate information it gave and the limited communication with the family, and offers to acknowledge the distress caused with a symbolic payment to Mr K of £300.

Analysis

30. The Council’s approach to Mrs A’s care was riddled with delays and inaccurate information. It never properly addressed the fundamental task of providing a personal budget for Mrs A which would be sufficient to meet her eligible needs and a carer’s budget for Mr K which recognised the burden of his caring role. Instead there was a series of visits from care homes which put Mr K in the uncomfortable position of posing as a prospective client.
31. It was not until its response to our enquiries that the Council acknowledged that its position of imposing an arbitrary ceiling to personal budgets for a client remaining in their home was wrong. During the time it was calculating the personal budget to Mrs A and Mr K’s carer’s budget it was operating on that incorrect basis.

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Action

32. It is not our role to recalculate the personal budget for Mrs A and any injustice she suffered as a result of the Council’s shortcomings cannot now be remedied.
33. However, it seems from the evidence available that the Council should go further in its recognition of the distress it caused to Mr K.
34. The Council agrees it will apologise formally to Mr K within one month of my final decision.
35. Within one month of my final decision the Council will offer a sum of £1000 to Mr K for the distress and uncertainty its actions caused at a time when he was providing a significant amount of care for Mrs A.
36. The Council should also provide details to us of its revised guidance for staff in relation to residents whose funds become depleted.
37. The Council should provide us with evidence it has complied with the above actions.

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Decision

38. I have completed this investigation on the basis that I find fault causing injustice. Completion of the recommendations set out at paragraphs 34, 35 and 36 will remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman