Summary: Mr Y complains about the Council’s decision to fund a residential nursing home placement for his mother, rather than a package of domiciliary care. There is no evidence of fault in the Council’s assessment which calls the outcome into question. The Council is entitled to consider cost efficiency when deciding between suitable options to meet a person’s eligible care needs.

The complaint

1. Mr Y complains about the outcome of the Council’s assessment which concluded that his mother’s care and support needs can be met within a residential nursing home. He says the NHS previously funded 24-hour home care and the Council should fund a continuation of this because it is in his mother’s best interests as evidenced by her GP.
2. Mr Y says there is no certainty over the future of his mother’s care package which is placing considerable strain on the family.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 considered evidence provided by Mr Y and the Council as well as relevant law, policy and guidance.
6. Mr Y and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Personal budgets

7. 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.
8. 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.

Third-party top up payments

9. 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. This also extends to shared lives, supported living and extra care housing settings.
10. 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’. A top-up fee is the difference between the personal budget and the cost of a home. But a top-up payment must always be optional and never the result of commissioning failures leading to a lack of choice.
11. If no suitable placement is available at the amount identified in the personal budget, the council must arrange care in a more expensive setting and adjust the budget to ensure it meets the person’s needs. In such circumstances, the council must not ask anyone to pay a ‘top-up’ fee.
12. However, if a person chooses a service which costs more than the personal budget, and the council can meet the person’s needs in a less expensive placement within the personal budget, it can still arrange a place at the home if:
• the person can find someone else (a ‘third party’) to pay the top-up; or

• the resident has entered a deferred payment scheme with the council and is willing to pay the top-up fee themself.

13. In such circumstances, the council needs to ensure the person paying the top-up enters a written agreement with the council and can meet the extra costs for the likely duration of the agreement.

Key events relevant to the complaint

14. Mr Y’s mother, whom I will call Mrs W, previously received NHS funded home care via Continuing Health Care (CHC). Due to being assessed as an end-of-life patient, Mrs W received 24-hour care. In February 2024 the NHS re-assessed Mrs W and on 16 April 2024 decided that she was no longer eligible for CHC funded care due to a change in her needs. The funding ended on 14 May 2024 and Mrs W started to self-fund her care.
15. The Council had a telephone discussion with one of Mrs W’s daughters on 29 April 2024. Notes of that call say the social worker “went through all the options and explained our process [regarding] block bed etc and top ups”. Mrs W’s daughter provided her email address for the social worker to email a finance form to.
16. On 30 April 2024 Mr Y wrote to the Council to advise that Mrs W’s capital will deplete quickly due to Mrs W paying for her care. On 9 May 2024 the Council assessed that, from 24 June 2024, Mrs W’s capital would fall below the relevant threshold of £23,250.
17. In the meantime, Mrs W continued to privately fund the provision of a ‘live in’ carer to provide 24-hour support at home. A note made by the Council on 7 May said Mrs W’s family had decided to cut the daily calls from four to two as family members were also helping to provide support for Mrs W.
18. The Council completed an assessment of Mrs W’s social care needs on 21 May 2024. During the assessment Mrs W expressed that she wished to stay in her own home and that if she went into a nursing home, her friends could not visit. The assessment also recorded that “top up policy has been sent to family”.
19. Records show that management considered the family’s request for direct payments to fund the provision of a live-in carer as a continuation of the type of support Mrs W had received from the NHS since 2022. The notes say, “a domiciliary care package has been considered but this would not meet [Mrs W’s] overnight needs. Residential placements have been considered but [Mrs W] is highly anxious about this”. Three days later, the Council recorded, “live in care is not agreed as there is no evidence that her needs can’t be met in residential/nursing provision. If [Mrs W] is making a choice to remain at home, please can a conversation about the top-up consequences take place with her”.
20. On 26 June 2024 the Council identified a placement at a local nursing home at a cost of £874 per week. However, due to some ongoing repairs at the home, the Council said it would be two further weeks until Mrs W could move. In light of this, the Council extended interim funding for Mrs W’s live-in care until 8 July 2024 due to the ongoing discussions around her long-term care needs.
21. The Council called Mr Y and Mrs W’s daughter on 1 July 2024 to inform them of the decision. The notes of the call say, “they’re happy to accept [placement at nursing home name]”.
22. However, the family reconsidered their options and changed their mind about the placement. Mrs W’s GP wrote a letter on 15 July 2024 to say, in their opinion, Mrs W experienced a significant decline in her mental health after being told that she would need to move into a nursing home. The GP also said that Mrs W’s daughter visits daily which greatly benefits Mrs W’s physical and mental health.
23. The Council emailed Mr Y on 23 July 2024 to confirm its intention to attend Mrs W’s home the next day to complete an assessment under the Care Act. The social worker also called Mrs W and spoke with her carer. Mrs W agreed to the appointment, but Mr Y declined because of short notice. On 24 July 2024 the Council agreed it would complete the assessment without visiting Mrs W at home.
24. Mr Y completed and returned the financial forms on behalf of Mrs W in September 2024.
25. In October 2024, and after completing its assessment, the Council recorded that “… [Mrs W] has 24 hour care and support needs which can be met in a residential setting… there would be risks around supporting [Mrs W] with a four call a day as she would be on her own between care calls” and, “… that it is [Mrs W] and her family’s preference to be supported at home. However due to the above risks domiciliary care package with family tending to her at night would not be sufficient and sustainable”
26. Following an initial financial assessment, the Council said, “it is likely that [Mrs W] will not be required to pay towards the cost of [the] residential care service”.
27. The Council emailed Mr Y on 29 October 2024 to confirm it had made a backdated direct payment to cover 12 weeks of care from 1 July to 1 October 2024. From 1 October 2024 the Council agreed to a personal budget of £873.23 which would cover the cost of a nursing home placement. Following an assessment of Mrs W’s finances, the Council confirmed that she would not be required to make any contribution to the cost of the care home placement.
28. Mr Y responded to relay his view that Mrs W needed to receive palliative care at home and in line with medical recommendations. The Council responded to provide its view that:
• Mrs W is at risk of falls unless she is supported for 24 hours a day. Mrs W is unable to get out of bed without the help of two carers to ensure safety.
• Mrs W’s skin is very fragile and can tear or bruise easily. Mrs W also experiences double incontinence, and it is essential that all continence issues are dealt with promptly due to the risks to Mrs W’s skin integrity.
• Mrs W cannot change position independently which further increases her risk of pressure sores. Carers need to support with manual handling, such as rolling over and changing pads, and this needs to be undertaken with two carers. Mrs W currently receives double-handed care only twice each day and there have been times when one carer has needed to undertake these tasks on their own.
• The GP letter refers to the importance of Mrs W’s daughter visiting her daily but does not make a recommendation for Mrs W to remain at home. The nursing home placement recommended by the Council would enable family and friends to visit frequently due to its location.

Was there fault in the Council’s actions causing injustice to Mrs W?

29. Our role is not to ask whether the Council could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
30. I have considered the steps the Council took to make its decision, and the information it took account of when assessing Mrs W’s needs and planning for her care and support. In my view, there is no fault in how it took the decision, and I therefore cannot question whether that decision was right or wrong.
31. I appreciate that Mrs W wanted to remain in her own home; this is a decision Mr Y and other family members supported. However, based on the information available to me, this was a preference rather than an assessed need. The records provided by the Council show clear reasons why, in the Council’s view, the proposed nursing home placement would meet Mrs W’s eligible needs whilst keeping her close to family members – something which Mrs W’s GP had stressed the importance of. Although Mr Y feels the Council was wrong to consider cost, this was a factor which the Council was entitled to consider.
32. While the Care Act 2014 says that eligible needs must be met, it also allows local authorities to consider cost-effective methods to do so, provided these methods deliver the desired outcome in meeting those needs. This is reflected in Paragraph 10.27 of the Care and Support Statutory Guidance, which says:

“In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position and must comply with its related public law duties. This includes the importance of ensuring that the funding available to the local authority is sufficient to meet the needs of the entire local population. The local authority 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)”

“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”.

33. Furthermore, the courts have confirmed a person’s wishes are not the same as their needs and wishes are not the paramount consideration. Councils 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))
34. For the reasons explained in this statement, I find no fault in the complaint made by Mr Y.

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Decision

35. I have completed my investigation. For the reasons explained in this statement, I find no fault in the complaint made by Mr Y.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman