Summary: Mrs X complained the Council wrongly refused to put in place 24-hour live at home care, failed to consider her wishes about staying at home, imposed agency care every fourth week and failed to consider employment law when allowing Ms Y to provide 24-hour care. There is no evidence of fault by the Council.

The complaint

1. The complainant, Mrs X, is represented by her daughter, Ms Y. Ms Y complained the Council:
• unreasonably refused to put in place 24-hour live at home care despite recognising Mrs X needs 24-hour care;
• failed to consider Mrs X’s wishes when recommending placing her in residential care;
• imposed agency care every fourth week; and
• failed to take into account it is breaking employment law by expecting Ms Y to provide care 24 hours a day without a break.
2. Ms Y says the Council’s actions have caused her and Mrs X great distress and means she is expected to provide 24-hour care to Mrs X.

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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. As part of the investigation, I have:
• considered the complaint and Ms Y's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Ms Y and the organisation 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

Care Act

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. 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.

Care and support statutory guidance

9. The local authority must take into consideration the individual’s preferences. The authority should consider the person’s goals in approaching the authority for support, and the level or nature of support desired.
10. Local authorities are not under a duty to meet any needs that are being met by a carer. The local authority must identify, during the assessment process, those needs which are being met by a carer at that time, and determine whether those needs would be eligible. But any eligible needs met by a carer are not required to be met by the local authority, for so long as the carer continues to do so. The local authority should record in the care and support plan which needs are being met by a carer, and should consider putting in place plans to respond to any breakdown in the caring relationship.
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 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). However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles. 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.
12. Direct payments are monetary payments made to individuals who request to receive one to meet some or all of their eligible care and support needs. The legislative context for direct payments is set out in the Care Act, Section 117(2C) of the Mental Health Act 1983 (the 1983 Act) and the Care and Support (Direct Payments) Regulations 2014.
13. Where a direct payment recipient is using their payment to employ a personal assistant (PA) or other staff, the local authority should ensure that there are clear plans in place of how needs will be met in the event of the PA being absent, for example due to sickness, maternity or holiday. Local authorities still have a duty to ensure needs are being met, even if the person makes their own arrangements via the direct payment, so contingencies may be needed. Where appropriate, these should be detailed in the care and support plan, or support plan.
14. The direct payment is designed to be used flexibly and innovatively and there should be no unreasonable restriction placed on the use of the payment, as long as it is being used to meet eligible care and support needs.
15. The 2009 Direct Payment Regulations excluded the payment from being used to pay for care from a close family member living in the same household, except where the local authority determined this to be necessary. While the Care and Support (Direct Payments) Regulations 2014 maintain this provision regarding paying a family member living in the same household for care, it provides a distinction between ‘care’ and ‘administration/management’ of the direct payment. This allows people to pay a close family member living in the same household to provide management and/or administrative support to the direct payment holder in cases where the local authority determines this to be necessary. This is intended to reflect the fact that in some cases, especially where there are multiple complex needs, the direct payment amount may be substantial.

Background

16. Mrs X has dementia and is represented by Ms Y who also provides her with care.
17. Mrs X needs a significant care package as she needs 24-hour supervision. The Council assessed Mrs X as needing a care home placement but Mrs X wanted to remain in her own home. Ms Y therefore stays with her and is paid as a personal assistant (PA). That was at first for 37 hours a week and increased to 42.5 hours per week in 2023. Ms Y stays with Mrs X for the rest of the time and provides informal care. Mrs X receives her personal budget as a direct payment. As Mrs X does not have capacity to manage her own affairs Ms Y manages the direct payment on her behalf. Ms Y also has lasting Power of Attorney for health and welfare for Mrs X.
18. The Council completed a carer assessment for Ms Y in February 2024. Following that the Council agreed 21 days for a carers break for Ms Y.
19. Ms Y raised concerns about the Council not funding 24-hour care at home. The Council therefore carried out a further care assessment in November 2024. As part of that assessment the Council discussed the support Ms Y was providing Mrs X with each day. The Council calculated that equated to 56.5 hours support per week and put in place a direct payment for that amount.
20. In January 2025 the Council increased the support available to Ms Y to allow her a break from her caring role. That involves the Council paying a care agency to provide 24-hour care to Mrs X one week in every four. Ms Y says the Council should fund 24-hour care at home for Mrs X. The Council’s view though is that Mrs X’s needs can best be met in a care home. While Ms Y is willing to provide informal care to Mrs X the Council is happy to fund 56.5 hours per week to enable Mrs X to remain at home.

Analysis

21. Ms Y says the Council wrongly refused to put in place 24-hour live at home care for Mrs X. Ms Y says in refusing to fund 24-hour live at home care the Council failed to consider Mrs X’s needs and preferences and relied on cost in reaching its decision.
22. It is not the Ombudsman’s role to say what care package the Council should have agreed. That is a matter for the Council to decide. Only if there is fault in how the Council reached its decisions would the Ombudsman be able to comment.
23. Having considered the care assessments the Council completed I am satisfied the Council has identified Mrs X needs 24-hour supervision. I am also satisfied the care assessments make clear the Council’s view this can best be met by placing Mrs X in a care home. I am also satisfied though the assessments record Mrs X’s wish to remain in her own home and Ms Y’s comments about that. I therefore could not say the Council failed to consider Mrs X’s wishes. In fact, it is clear the Council has respected those wishes by putting in place a care package to enable Mrs X to remain at home.
24. I am also satisfied in deciding Mrs X needs 56.5 hours of support the Council has carefully considered Mrs X’s needs. I say that because I am satisfied as part of the last assessment completed in November 2024 the Council’s social worker sat down with Ms Y to discuss the number of hours direct support she provides to Mrs X to meet her needs. I am satisfied that has enabled the Council to show that to meet Mrs X’s needs in each of the areas assessed in the care assessment Ms Y provides 56.5 hours support per week. As I am satisfied the Council has properly assessed Mrs X’s needs and the hours Ms Y spends meeting those needs I have no grounds on which I could criticise it. The Council’s responsibility is to ensure a service users needs are met and the Council is satisfied Mrs X’s needs are met with 56.5 hours of support.
25. I recognise though Ms Y believes the Council should fund 24-hour care at home. The care assessments clearly record though that the Council is satisfied Mrs X receives informal care from Ms Y outside the 56.5 hours the Council now funds. It is not fault for the Council to take into account the informal care available to Mrs X when deciding the care package it should fund. Only if that informal care were not available to Mrs X would I expect the Council to consider alternative options.
26. Ms Y says the Council has made its decision based on the cost implications of 24-hour care at home compared to the cost of a care home. I have found no evidence to support that conclusion. In fact, the care package the Council is funding costs more than a care home would cost. The evidence I have seen satisfies me the reason the Council is only funding 56.5 hours per week is because it is satisfied that is the amount of hours needed to meet Mrs X’s care needs. As I have also made clear, the fact Ms Y provides informal care/supervision for the rest of the day is a relevant factor for the Council to consider.
27. Ms Y raises concerns about the Council imposing a care agency for one week in every four but also raises concerns about the Council expecting her to provide 24-hour care. I have seen no evidence the Council expects Ms Y to provide 24-hour care. Care assessments clearly record the Council’s view that a care home placement would be the most appropriate option for Mrs X but that Ms Y does not want that for her and therefore she is providing informal care outside the 56.5 hours the Council is funding. I have seen no evidence to suggest the Council is forcing Ms Y to do that. I therefore have no grounds to criticise it.
28. I am satisfied though the Council recognises the impact on Ms Y of providing informal care on top of the 56.5 hours for which she is paid as a PA. I am satisfied that is why the Council carried out a carer assessment and has now put in place a care agency for one week in every four so Ms Y can have a break. I am also satisfied Ms Y took part in that assessment and the carer assessment records Ms Y agreed to that arrangement. I therefore could not say the Council imposed agency care on Mrs X or Ms Y. I am also satisfied the agency care arrangement forms part of the direct payment which is paid to Ms Y. That means Ms Y has control over the agency she uses.
29. Ms Y says because the Council will not fund 24-hour care at home it is breaking employment law as Ms Y is working 24 hours a day. I am satisfied though the Council has made clear to Ms Y that because she is managing a direct payment for Mrs X it is Ms Y, rather than the Council, that is responsible for ensuring she complies with employment law. I am satisfied this is made clear in the direct payments agreement, which Ms Y has signed. The Council is therefore not responsible for Ms Y’s working arrangements. So, I have no grounds to criticise it.
30. Ms Y says the Council’s social worker wrongly told her the Council will not fund live-in care when that is not accurate. There is nothing in the documentary evidence I have seen to suggest the Council said that. As I have made clear, the Council’s view is that a care home placement is the most suitable placement for Mrs X but it has nevertheless agreed to fund 56.5 hours care at home to enable Mrs X to remain in her own home.
31. I appreciate neither Mrs X nor Ms Y want a care home placement. I understand that. However, although the Council is expected to consider the service users wishes that does not mean it has to fund the care option the service user wants. It is not fault for the Council to take into account the financial cost of care arrangements and the Council has explained it considers a care home placement the most suitable option. As I also said though, I am satisfied the Council has still agreed to fund a care package which exceeds the cost of a care home placement to enable Mrs X to remain at home.
32. Ms Y has raised concerns about whether the Council has taken into account dementia training which says those with dementia should not be moved because it will impact on their well-being. The Council says although it recognises that, there are circumstances where a change of environment is inevitable. In this case though I am satisfied the Council has not taken any action to move Mrs X into a care home. Instead, it has agreed to fund 56.5 hours care per week to enable Mrs X to remain at home.
33. I recognise that falls short of the 24-hour care at home Ms Y would like the Council to fund. As I have made clear though, it is not fault for the Council to take into account both the fact that Ms Y is providing informal care outside the 56.5 hours funded or the cost of providing 24-hour care at home, as compared to the cost of a care home placement. I therefore have no grounds to criticise it.

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Final decision

34. I find no fault.

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Investigator's decision on behalf of the Ombudsman