Summary: Mrs X complained the Council refused to fully fund her father to remain at home receiving his current 24-hour care provision. We found no fault by the Council.

The complaint

1. The complainant, Mrs X, complains the Council has refused to fully fund her father, Mr W, to remain at home receiving his current 24-hour care provision. Mrs X says her father does not want to move into residential care which would harm his well-being. Mrs X also says the matter has caused her distress and affected her health.

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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. 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. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
5. 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(1), as amended)

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How I considered this complaint

6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. Mrs X 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

Relevant background and case law

8. 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)
9. 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. When preparing a care and support plan the council must involve any carer the adult has. 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.
10. The number of people wanting to remain at home to receive a care package rather than to live in a care home is increasing. But care at home covering 24 hours, seven days a week, can be an expensive option and it usually costs more than a care home placement. Arbitrary limits are not acceptable and are contrary to statutory guidance (paragraph 11.22 of the Care and Support Statutory Guidance).
11. 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 council 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 (paragraph 10.27).
12. The detail of how the personal budget will be used is set out in the care and support plan, or support plan. At all times, the wishes of the person must be considered and respected. For example, the personal budget should not assume that people are forced to accept specific care options, such as moving into care homes, against their will because this is perceived to be the cheapest option (paragraph 11.7)
13. The personal budget must be an amount that is the cost to the local authority of meeting the person’s needs which the local authority is under a duty to meet. In establishing the ‘cost to the local authority’ consideration should therefore be given to local market intelligence and costs of local quality provision to ensure that the personal budget reflects local market conditions and that appropriate care that meets needs can be obtained for the amount specified in the budget (paragraph 11.25).
14. Case law (R (Davey) v Oxfordshire County Council) found while a person’s preferences had to be taken into account, these had to be distinguished from their needs for care. The court of appeal commented that ‘there is no duty to achieve the outcomes which the adult wishes to achieve; rather it is a duty to assess whether the provision of care and support could contribute to those outcomes’. The wishes of the individual may be a primary influence, but they do not amount to an overriding consideration.
15. A direct payment is one way in which an adult may receive their personal budget.

What happened

16. Mr W was living at home with self-funded 24-hour care from two live in carers who alternated support at a cost of £1,750 per week. This arrangement had been in place from 2022.
17. Mrs X contacted the Council in August 2024 as Mr W’s savings had fallen below the upper capital limit.
18. The Council completed an assessment up to September 2024 of Mr W’s needs. This included the use of a monitoring system to gain information about Mr W’s activity particularly overnight. The Council also obtained information from Mr W’s carers and Mrs X.
19. The Council met with Mr W in November. The assessment noted Mr W wanted to stay at home and had lived there with 24-hour support for just over two years. It was considered that Mr W had 24-hour support needs and the same level of support was not possible from carers visiting at intervals during the day. The assessment also considered that Mr W had had carers staying with him 24-hours a day for over two years and removing access to 24-hour support would be “a drastic change in his situation”. The assessment recorded the support could be provided through 24-hour support at home or through moving into a residential home. It was noted that financial discussions and information had been provided in May 2023 and that a financial assessment was currently in progress.
20. The Council also completed a Mental Capacity assessment in November. This concluded Mr W did not have the mental capacity to make decisions regarding his care. If an individual does not have mental capacity to make a decision regarding their care and support then a decision will need to be made on their behalf in their best interests. Where someone has lasting power of attorney/court appointed deputyship for health and welfare they can make a decision on the person’s behalf. Mrs X has a lasting power of attorney for health and welfare and so is able to make a decision on Mr W’s behalf.
21. The Council completed a Care and Support Plan towards the end of November. This noted the monitoring system had been in place to provide information about Mr W’s activity and had been considered in the assessment, together with qualitative information from Mrs X and the care staff. This concluded Mr W had care needs over a 24-hour basis and that the risks would not be managed if he had care visits at intervals during the day and an alert system at night. It is recorded that weight was given to the fact Mr W had access to 24-hour support for just over 2 years, so it would be a drastic change for him to revert to a more standard homecare service. It was noted that although it was unknown how Mr W would respond if he was left alone for long periods of time and overnight, there were indicators of significant risks of Mr W coming to harm, based on information about his confusion and disorientation and physical risks which were currently managed through the 24-hour support. It is recorded there would be a discussion about how the Council proposed to meet the 24-hour support needs at a Quality Assurance Meeting as these would usually be met through support in residential care, but consideration would be sought about what level the Council would support towards the 24-hour care at home continuing. It is recorded that advice was provided for Mrs X to consider other financial options for continuing Mr W’s current arrangements if the Council funded a proportion towards the care fees. The Care and Support Plan set out a direct payment of £700 per week for four daily homecare calls to support with the proposed transition from 24 hour (self-funded support). This was increased on a temporary basis to £1200 while longer term options for 24-hour support were being considered. The personal budget is recorded as £1,200.
22. The Council wrote to Mrs X on 16 December with the outcome of the discussion at the Quality Assurance Meeting (QAM). The Council explained it would not meet the full cost of 24-hour support at home as it was considered Mr W’s 24-hour care needs could appropriately be met through a residential care placement. The alternative to this would be for a Direct Payment to be paid by the Council to Mr W which would be at the same rate paid for residential care, which would then require the family to consider alternative arrangements to supplement this, whether this was financial or practical to cover some of the care currently provided by the carers. The Council further explained that it had a duty to provide a package of care which would satisfactorily meet a person’s identified needs but unfortunately this would not always align with their preferred choice although it would always acknowledge those preferences in its decision making. The Council highlighted the relevant section of the Care and Support Statutory Guidance that set out local authorities could take into reasonable consideration its own finances and budgetary position in determining how to meet needs. This included the importance of ensuring that the funding available to the local authority was sufficient to meet the needs of the entire local population. It further noted 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). It was acknowledged that a local authority should not set arbitrary upper limits on the costs it was willing to pay to meet needs through certain routes as doing so would not deliver an approach that was person-centred or compatible with public law principles. However, the Council outlined the relevant guidance and that an authority may take decisions on a case-by-case basis which weighed 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 did not mean choosing the cheapest option; but the one which delivered the outcomes desired for the best value. The Council confirmed it was on this basis that the decision was reached at QAM that Mr W’s outcomes could be met by either residential care or potentially by a Direct Payment with additional support.
23. Mrs X complained to the Council about its decision towards the end of December.

24. The Council responded to Mrs X’s complaint in early February 2025. The Council confirmed it had assessed Mr W as requiring 24-hour monitoring and support and these needs could be managed in a residential care home. The Council confirmed it had explored alternative care agencies and received a recent quote of £1,500 per week which the Council was not able to fund. The Council had agreed as a gesture of goodwill to fund £1,200 (less Mr W’s assessed contribution) temporarily while Mrs X considered long term care. This would be reviewed in three months at the end of April. If Mr W decided to stay at home the additional costs above those the Council was able to fund would need to be met by family support and they may wish to consider seeking professional advice about equity release. The Council confirmed it took preferences into account but the funding made available to support an individual would be determined by the most cost-effective care package based on the local care market, availability of local care providers and cost of community based and residential care. The Council confirmed a deferred payment was only an option if a person went into residential care not when having care in their own home.
25. Mrs X remained unhappy and the Council provided a further response in mid-March. The Council confirmed there was no cap on care costs but the Care Act allowed councils to consider costs of different potential options as a relevant factor in deciding between suitable alternative options. The Council confirmed it had taken Mr W’s wishes into consideration and offered to fund a package of care at £1,200 per week which was above the cost of residential care and was satisfied this was a reasonable offer. The Council made clear that any costs above that figure would be the responsibility of Mrs X or the wider family in the form of a top up fee. The Council confirmed it had obtained several quotes from care providers and considered it had checked the market as previously advised. The Council offered a carers assessment to Mrs X.
26. In responding to the Ombudsman, the Council confirmed the above arrangement remains subject to review with the next review due in February 2026.
27. The Council has also confirmed that Mr W’s property is subject to a statutory disregard because he is not receiving care and support in a care home on a permanent basis. It is noted that Mr W’s wife passed away in January 2024 before Mr W received support at home through a Direct Payment.
28. The Council has explained that although Section 9 of the Care and Support Statutory Guidance provides discretion to local authorities to offer deferred payment agreements to people who do not meet some of the criteria for when such an arrangement must be offered this should be read in conjunction with the introduction to the Guidance and underpinning Care and Support (Deferred Payment) Regulations 2014. Taken together these set out an overarching principle that the Universal Deferred Payment scheme is only intended to be available to people that are receiving care and support in a care home on a permanent basis and the criteria that can be applied more flexibly only apply if the person is receiving support in a care home or supported living accommodation.  

My consideration

29. The Council completed an assessment of Mr W’s social care needs in 2024 and determined he met the national eligibility criteria for social care and support. This was in line with Section 9 of the Care Act 2014 and there is no fault.
30. I am satisfied the Council actively considered Mr W’s wellbeing in line with the principles in Section 1 of the Care Act 2014. All the records note his wishes and preferences to stay at home and reflect the information provided by Mrs X, existing care staff and the monitoring system. However, the wellbeing principle does not mean there was a legal duty on the Council to fund their preferred care option. My view is that Mr W’s wellbeing was considered by the Council’s decision to fund his care over and above the rate it would usually expect to pay for residential care.
31. The Council is entitled to limit Mrs X’s direct payment to £1,200 per week which is above the cost of residential care and there is no fault. This is because the Council’s duty is to meet Mr W’s eligible unmet needs, in line with Section 18 of the Care Act 2014. It does not have to meet his or Mrs X’s preferences as the High Court confirmed in the Davey case (see paragraph 14). It is open to the Council to decide how to meet needs and it has discretion to choose between available options as set out in Section 8 of the Care Act 2014.
32. While this is a decision Mrs X does not agree with, I am satisfied the Council has had regard to paragraph 10.27 of the Care and Support Statutory Guidance so there is no fault. The Council is entitled to take into account its social care budget as well as a person’s expressed preferences when allocating funding to an individual case. It is a matter for the Council to decide what weight to give each factor. We have no grounds to interfere with a discretionary decision like this, because it has been taken without fault.
33. Finally, I have seen no evidence of fault in how the Council has reached its view about the option of a deferred payment in Mr W’s particular circumstances.

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Decision

34. I find no fault.

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Investigator's decision on behalf of the Ombudsman