Summary: Mrs R says the Council has wrongly required her daughter, Ms C, to pay for respite care breaks and wrongly stated that Ms C does not need her carers while in respite care which has caused them injustice as they cannot afford to pay for the respite care. The Council was not at fault. It carried out financial and needs assessments as required. It was entitled to charge as it did according to the criteria set out in the relevant statutory guidance.

The complaint

1. The complainant, Ms C, is represented by her mother, Mrs R. Mrs R says the Council is at fault for its assessment of Ms C’s contribution towards her respite care which, she says, has been made in the face of evidence she has provided that the costs of Ms C’s care leave insufficient funds to pay it.
2. Mrs R says this has caused Ms C and herself injustice as Ms C cannot afford the additional fees and Mrs R has had to pay them.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a council’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)
5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

6. I spoke to Mrs R. I wrote an enquiry letter to the Council requesting further information. I considered this information alongside the relevant law and guidance before writing my draft decision.
7. I sent my draft decision to Mrs R and the Council and invited their comments. I then made changes to my draft as a result.

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What I found

What should happen

Social care

8. The Care Act 2014 introduced a requirement that local authorities should promote ‘wellbeing’ and ‘signifies a shift from existing duties on local authorities to provide particular services, to the concept of ‘meeting needs’. ‘Meeting needs’ recognises that everyone’s needs are different. Local authorities must consider how to meet each person’s specific needs rather than simply considering what service they will fit into’. (Care and Support Statutory Guidance, Ch 1)

Needs assessment

9. If a council decides a person is eligible for care, it must prepare a care and support plan. This must set out the needs identified in the assessment. It must say whether, and to what extent, the needs meet the eligibility criteria. It must specify the needs the council intends to meet and how it intends to meet them. It must hold annual reviews of its care and support plan. (Care Act 2014, ss 24 and 25)
10. The care and support plan must set out a personal budget 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, s 26)
11. The High Court has confirmed an individual’s wishes are not the same as their needs and their 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))

Carers

12. A council must consider whether to carry out a carer’s assessment if it appears the carer has need for support.  It must assess the carer’s ability and willingness to continue in the caring role. It must also consider the results the carer wishes to achieve in daily life and whether support could contribute to achieving those results (Care Act 2014, s10)

Charging for care

13. Where a local authority has decided to charge for care, it must carry out a financial assessment. Care and Support Statutory Guidance 2014, 8.16)

Charging for care in the home

14. Councils have a discretion to charge for care provided in the home.
15. ‘Because a person who receives care and support outside a care home will need to pay their daily living costs such as rent, food and utilities, the charging rules must ensure they have enough money to meet these costs. After charging, a person must be left with the minimum income guarantee (MIG), as set out in the Care and Support (Charging and Assessment of Resources) Regulation 2014. In addition, where a person receives benefits to meet their disability needs that do not meet the eligibility criteria for local authority care and support, the charging arrangements should ensure that they keep enough money to cover the cost of meeting these disability-related costs.

Charging for short term and temporary care

16. The way charges for residential care are calculated varies depending on the length of stay. Residents are divided into three categories; short-term residents, temporary residents and permanent residents.
• Short-term residents stay for under eight weeks;
• Temporary residents stay for less than 52 weeks; and
• Permanent residents.
17. If it does decide to charge, a council must disregard expenses incurred in maintaining the service user’s home during the stay. (Care and Support Statutory Guidance 2014, Annex F)
18. A local authority can choose whether or not to charge a person where it is arranging to meet needs. In the case of a short-term resident in a care home, the local authority has discretion to assess and charge as if the person were having needs met other than by the provision of accommodation in a care home. (Care and Support Statutory Guidance, Annex F.8)
19. Local authorities may take most of the benefits people receive into account. They need only disregard direct payments, veterans payments and the mobility component of disability living allowance and personal independence payments. . (Care and Support Statutory Guidance, Annex C, 14-15)
20. In financial reviews, councils should disregard any payments service users receive to meet their housing and independent living costs. Attendance allowance, disability living allowance care component and personal independent payments should be disregarded in the financial assessment. (Care and Support Statutory Guidance 2014, Annex F, 14, 15)

What happened

Background

21. Ms C is a woman in her 40s with profound and complex disabilities. She is non-verbal and doubly incontinent. She requires 24-hour care, usually from two carers. Her mother, Mrs R, has provided the majority of Ms C’s care throughout her life. Ms C lives at Mrs R’s house where she has a comprehensive care package funded by the NHS continuing healthcare (60%) and the Council (40%).
22. Mrs C says that, because of her complex needs, Ms C must receive certain care every day, where possible. This includes being taken for a walk.
23. Mrs C suffers from high blood pressure and migraines. She does not sleep well as Ms C requires support during the night. She gets very tired which causes her to lose motivation. Mrs R has said she wants to continue in the role of carer for as long as she can but says she requires respite breaks to do so.
24. The Council has twice assessed Mrs R’s needs as a carer. It has recognised that she has a need for respite. It made two one off payments of £150. It has allocated no further budget towards this relief.
25. For over a decade, to provide Mrs R with respite, Ms C has gone into a local respite facility. She receives 70 nights respite care annually.
26. The Council also provides Ms C with funding for 106 hours care per week through direct payments. She does not pay a contribution towards this care. Mrs R has recently dispensed with the services of an agency which provided this care following a safeguarding incident and is now providing all the care herself.
27. In 2009, the Council asked Ms C for a weekly contribution towards her respite care. Mrs R said Ms C could not afford to pay. The Council agreed to waive the charge for an indefinite period. In November 2015, the Council again began to charge Ms C for respite care. Mrs R paid the charges on Ms C’s behalf for 10 months before saying she could not afford to do so. She began to reduce her use of the service. The evidence shows that there was concern that, without this respite, Mrs R would not be able to cope with Ms C’s care at all. The Council again waived the charges. This waiver period lasted for ten months before the Council again asked for payment.
28. Mrs R paid for some time but found it very hard. In August 2017, Mrs R asked for a financial assessment because, she said, Ms C had outgoings which were not allowed for. She said the money Ms C had left did not cover her outgoings because, among other things:
• She ran the washing machine four times a day because of Ms C’s incontinence and had to have heating on full blast when Ms C was at home;
• Even when Ms C went into respite, her home carers had to take her to the day care centre she attends and take her back to the respite home every day and therefore had to be paid.
29. The Council carried out a financial assessment and again requested payment. In March 2018, Mrs R made a formal complaint about the fact that Ms C was required to pay a contribution towards her respite care. She said that Ms C had various expenses while at respite, such as travel to and from day care, admission charges for various activities and so forth, which were not taken into account when calculating Ms C’s disposable income.
30. In April 2018, a manager responded saying the charges were correct and in line with charging regulations.
31. In August 2018, a senior manager provided a further response. She did not agree to waive the charges Ms C had incurred so far but said that, because of changes in ‘benefits and allowances’ it would not charge Ms C for respite received between April and August 2018.
32. She also said that ‘I am aware that these expenses are not entirely being met by the Short Breaks unit as you are still contributing towards traveling expenses, food and activities whilst she is at Short Breaks. On discussions with [a manager] she informs me that she has held discussions with [the day care centre] and they have clarified they can meet [Ms C’s] needs within the unit. This includes all food, transport and a range of activities that are provided to people who attend the Short Breaks service’.
33. In autumn 2018, the Council completed a review of the care and support plan. The review found that, because of Ms C’s complex needs, many providers of community support and adult care services were unable to support Ms C. One provider was identified who could provide day services five days a week if she attended with her full time carers paid for via direct payments.
34. In November 2018, the Council voted to amend its charging policy to include higher rate attendance allowance, disability living allowance, (care component) and personal independence payments in its financial assessments. It wrote to Ms C explaining the changes and saying she would be charged £41.30 per week.
35. The Council began charging Ms C for respite again in April 2019 in line with the new policy. It charges her £45.87 per week.
36. Mrs R complained to the Council in June 2019. She said Ms C could not afford to pay for the respite care as she continued to pay bills she incurred for her care at home when she was there. She said Ms C was being charged twice.
37. A manager, Officer O, responded in August 2019 saying the Council would not waive respite charges as they were in line with the Council’s policy. She said:
1. Ms C did not contribute anything towards her direct payments. Therefore, she was not being charged twice. She could continue to fund the carers who travelled with her when at respite out of her direct payments; and
2. Staff at the respite facility were able to meet Ms C’s care needs so there was no need for her carers to travel with her to the respite facility.
38. Mrs C disputed the stage one decision. She said:
1. The respite facility could not provide all the care Ms C provided; and
2. The fact that Ms C did not contribute to the direct payments showed that she could not afford to pay towards her respite care either.
39. Officer O provided the stage 2 response too. She dismissed the complaint saying:
1. After talking to officers concerned, she was satisfied the respite facility could provide the care; and
2. Different criteria were used to assess residential and non-residential care and therefore, there was no inconsistency of approach in the Council charging a contribution towards respite care but not towards direct payments.
40. Mrs R complained to the Ombudsman.
41. In August 2019, the Council reviewed Ms C’s care package. In it, it was stated, at p.18 ‘[Ms C] also accesses 2:1 support during respite breaks and attends [a] day service during this period when they are open’.

Was there fault causing injustice?

42. Mrs R complained to the Ombudsman about Officer O’s second complaint response in September 2019. I have therefore considered her complaint using the two points set out in paragraph 40 above. These are:

Respite faculty able to provide all care

43. The Council has stated that the respite care facility is able to provide all the care that Ms C requires. Generally, the Ombudsman does not find fault with decisions made by professional officers in possession of the facts as to how a council provides care specified in the care plan. Further, case law is clear that councils can provide care in any way they see fit providing they meet the assessed needs.
44. However, in this case, it is stated explicitly that Ms C visits the day care service during respite. It then sought to withdraw that provision without a review.
45. Mrs R complained in 2018 that Ms C required her full-time carers with her every day at respite and incurred expenses in going out while there. She has stated that these are necessary because they help Ms C with exercise and other functions which have been set out as necessary by medical staff.
46. The Council should have reviewed the care package before deciding that the care home could provide all necessary care. This was fault.
47. Mrs R says the respite facility has, since she made her complaint, told her that it cannot, in fact, provide the care Ms C requires internally. If that is the case, and Ms C does need to leave the respite facility, then this must be resolved during a further review of her needs and care.

Requirement to pay contribution towards respite care

48. The Council is entitled to charge for respite care. The Care and Support Statutory Guidance is clear that it can charge for respite care as it would for different sorts of care.

COVID 19

49. These events took place before the Covid19 emergency. Mrs C had already dispensed with the services of the full-time carers because of a safeguarding incident before the lockdown. The respite care facility is no longer open because of potential risk. Ms C is in a high-risk category because she has a breathing disorder. The Council says it is looking to find some suitable care for Ms C.

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Draft decision

50. Having considered the information gathered, I have reached a decision that the Council was not at fault. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman