Summary: Mr C complained the Council should have agreed to fund the cost of his mother’s residential care from the day she went into the home. We found fault with the actions of the Council, as there was an unreasonable delay in carrying out Ms M’s needs assessment. Furthermore, the Council should have agreed to fund her care from the date the assessment was carried out / completed. The Council has agreed to apologise to Mr C, backdate Ms M’s funding, review its relevant guidance and share the lessons learned with its adult social care and finance teams.

The complaint

1. The complainant, whom I shall call Mr C, complained:
• There was an unreasonable delay by the Council in carrying out a needs assessment of his mother (whom I shall call Ms M) and agreeing a personal budget for her permanent stay in her residential care home.
• The Council has failed to agree to fund the cost of his mother’s residential care from the day she went into the home.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)

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How I considered this complaint

4. I considered the information we received from Mr C and the Council. I shared a copy of my draft decision statement with Mr C and the Council and considered any comments I received before I made my final decision.

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What I found

Relevant legislation and guidance

5. The Care Act Guidance says that councils must carry a needs assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs.
6. On the issue of Ordinary Residence, the guidance says that:
• 19.5 Ordinary residence is one of the key tests which must be met to establish whether a council is required to meet a person’s eligible needs. It is therefore crucial that councils establish at the appropriate time whether a person is ordinarily resident in their area, and whether such duties arise.
• 19.10 Councils must determine whether an individual is ordinarily resident in their area following the needs or carer’s assessment, and after determining whether the person has eligible needs.
• 19.11 The determination of ordinary residence must not delay the process of meeting needs. In cases where ordinary residence is not certain, the council should meet the individual’s needs first, and then resolve the question of ordinary residence subsequently.
7. The guidance also says that (10.85): “Due regard should be taken to the use of approval panels in both the timeliness and bureaucracy of the planning and sign-off process. In some cases, panels may be an appropriate governance mechanism to sign-off large or unique personal budget allocations and/or plans. (…)  Councils should consider how to delegate responsibility to their staff to ensure sign-off takes place at the most appropriate level”.

What happened

8. Mr C arranged to move his mother, who had lived in another London Borough, into a care home located in Enfield. Ms M moved into the care home at the end of June 2019.
9. A month later, Ms M’s GP contacted the Council to ask for financial support for Ms M’s placement in the home.
10. It subsequently took:
• Until 19 November 2019, before the Council carried out a needs assessment, which concluded that Ms M’s needs should continue to be met in the care home.
• A further six weeks before Ms M’s case was presented to the Council’s Funding Panel, where her personal budget was approved.
11. The Council initially told Mr C that it would only fund his mother’s placements from the date the panel made its decision, which was 2 January 2020. Mr C was not happy with this, because he felt the Council should have paid for her placement from the day his mother went into the home. In response, the Council said that:
• Its policy is that it will only start to provide funding “from the date that the service is considered and agreed by the Funding Resource Panel, not from that date that contact was made with the Council”.
• The Council does not refund or reimburse a client for the cost of placements that were arranged on a private basis. This arrangement was done independently and without a funding agreement from the Council.
• In this case, there was a delay in undertaking the assessment, because the Council had to consider where Ms M’s place of ordinary residence was. In light of this, the Council would fund the placement from 20 November 2019 onwards (the day of the assessment). It also said that Ms M would not have to pay an assessed contribution for the period 20 November 2019 – 2 January 2020.

Analysis

12. The Care Act Guidance says that councils must carry out a needs assessment within a reasonable timescale. We expect a council to complete a needs assessment in a timescale that is proportionate to the complexity of the issues, and normally within 28 calendar days (about a month). However, Ms M’s assessment took place after four months, which is an unreasonable delay. This is fault, which resulted in a delay in the Council starting to fund the placement.
13. The Care Act Guidance also says that the determination of ordinary residence must not delay the process of meeting needs. In cases where ordinary residence is not certain, the council should meet the individual’s needs first, and then resolve the question of ordinary residence subsequently. However, in this case, it did result in a delay in the Council meeting Ms M’s needs, which it only decided to do from 2 January 2020. This is fault.
14. The guidance also says that a council should not use a funding panel to sign off basic funding decisions/personal budgets as, amongst others, this can cause unnecessary delays. (10.85): “Due regard should be taken to the use of approval panels in both the timeliness and bureaucracy of the planning and sign-off process. In some cases, panels may be an appropriate governance mechanism to sign-off large or unique personal budget allocations and/or plans. (…)  Councils should consider how to delegate responsibility to their staff to ensure sign-off takes place at the most appropriate level”. Based on the information available, it does not appear this case was either large or unique, so as to require a panel. In any case, a client should not be disadvantages by the Council’s view that a decision about personal budget should first go through a panel.
15. In cases such as these, the funding should start from (be backdated to) the date the Council established a client had eligible needs for residential care, which triggered the duty to meet those needs. This should be the date when the needs assessment has been completed. This will also ensure that any subsequent delays between eligibility having been established, and the Council agreeing the personal budget, will not be to the detriment of the client.
16. As the needs assessment should have been carried out by mid-August 2019 (within 28 working days), the Council should backdate the personal budget to then.

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Agreed action

17. I recommended that, within four weeks of my decision, the Council should:
• Provide an apology to Mr C for the faults above and the time and trouble and distress it has taken him to try and resolve this.
• Backdate the personal budget to mid-August 2019.
• Review its policy and staff guidance to ensure it is in line with the findings in this case.
• Share the lessons learned with the Council’s adult social care and finance teams.
18. The Council has told me it has accepted my recommendations.

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Final decision

19. For reasons explained above, I have upheld Mr C’s complaint.
20. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case.

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Investigator's decision on behalf of the Ombudsman