Summary: There was fault by the Council in the way it calculated Mrs Y’s personal budget for social care because it did not offer a residential care placement. This caused avoidable confusion, time and trouble and a financial loss. The Council will apologise and make payments set out in this statement. It will also review procedures. There was no fault in the way the Council dealt with the personal budget when Mrs Y became eligible for health funding and no fault in refusing to fund additional costs.

The complaint

1. Mr X complains about the care and support funding available for his late mother Mrs Y. He says:
1. The Council did not offer a placement and then capped the direct payment funding based on the cost of enhanced residential care
2. The funding does not take into account administration and co-ordination
3. Mrs Y did not receive the benefit of health funding paid by the ICB as this has been deducted from her direct payment.
2. Mr X said Mrs Y missed out on funding. He also said confusing and contradictory information from the Council caused avoidable time and trouble seeking out accurate information and time and trouble complaining.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. I have not treated this complaint as a late one, although it concerns matters which happened more than 12 months before the complaint to us. This is because Mrs Y lacks mental capacity to make decision about her finances, care and support and to complain about matters connected with these decisions. Our view is Section 26B of the Local Government Act 1974 does not apply in this situation.
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(i), as amended)

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How I considered this complaint

6. I considered the complaint to us, the Council’s complaint response and documents set out in this statement. I discussed the complaint with Mr X.
7. Mr X and the Council 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

What should have happened

8. A council must carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must also involve the individual and where appropriate their carer or any other person they might want involved. (Care Act 2014, section 9)
9. The Care Act spells out the duty to meet eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18)
10. An adult’s needs meet the eligibility criteria if they arise from or are related to a physical or mental impairment or illness and as a result the adult cannot achieve two or more of nine outcomes and as a result there is or is likely to be a significant impact on well-being. The nine outcomes include: managing and maintaining nutrition, maintaining personal hygiene, managing toilet needs and maintaining a habitable home. (Care and Support (Eligibility Criteria) Regulations 2014, Regulation 2)
11. The Care Act explains the different ways a council can meet eligible needs by giving examples of services including accommodation in a care home or other premises or care and support at home (Care Act 2014, section 8)
12. If a council decides a person is eligible for care, it should prepare a care and support plan which specifies the needs identified in the assessment, says whether and to what extent the needs meet the eligibility criteria and specifies the needs the council is going to meet and how this will be done. The council should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
13. The care and support plan must set out a personal budget. A personal budget is a statement 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, section 26)
14. Statutory Guidance explains a council should review a care and support plan at least every year, on request or in response to a change in circumstances. The purpose of a review is to see how a care and support plan has been working and to decide if any revisions need to be made to it. (Care and Support Statutory Guidance, Paragraphs 13.19-21 and 13.32)
15. The Mental Capacity Act and Code of Practice to the Act sets out the principles for making decisions for adults who lack mental capacity. An assessment of a person’s mental capacity is required where their capacity is in doubt. (Code of Practice paragraph 4.34)
16. Statutory Guidance says a council may take into account its budget and finances, including ensuring the funding available to it is enough to meet the needs of the whole local population. It may balance the requirement to meet an individual’s eligible needs with its overall budgetary responsibilities. It can take case by case decisions 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 options for meeting needs. (Care and Support Statutory Guidance, 10.27)
17. Direct payments are cash payments a council gives instead of commissioning or arranging a person’s care. They give an adult with care and support needs flexibility to make their own care arrangements.
18. National guidance says councils:
• Should set out the responsibilities of managing a direct payment and have clear and timely processes in place to respond to requests for direct payments at any time in the care assessment and planning process. Councils must consider a request in a timely manner as possible and if it is declined, the person should receive reasons. (Care and Support Statutory Guidance, 12.7 and 12.22)
• Should take all reasonable steps to provide support to manage a direct payment. (Care and Support Statutory Guidance, 12.21)
19. Government guidance The National Framework for NHS Continuing Healthcare (July 2022) (‘the National Framework’) explains funding is available for joint packages of health and social care. It says if a person is not eligible for NHS continuing healthcare funding (that is where the NHS pays for all their care, health and social care), then they may receive a joint package of health and social care funded by the NHS and the local authority. This may apply where a person has specific health needs identified through a continuing healthcare assessment that are not of a nature the local authority could be expected to meet. Such healthcare can include palliative and end of life care. In a joint package, the Integrated Care Board (ICB) and council can contribute to the package by:
• Delivering services to the person
• Commissioning services to support the care package
• Transferring funding between their respective organisations
• Contributing towards a personal budget.
20. The National Framework explains although the funding for a joint package comes from more than one source, it is possible that one provider or the same worker(s) could provide all the support. For example, a person in their own home with a package of support comprising both health and social care elements.

What happened

21. Mrs Y had dementia. Mr X and some other relatives hold Lasting Powers of Attorney (LPAs) for finances and health and welfare. This allowed them to make decisions for Mrs Y where she lacked mental capacity.
22. Mrs Y was living in her own home in 2021. Mr X and the other attorneys arranged home care for her and paid for it using her savings/income. The Council had no involvement with the care arrangements before April 2021.
23. In April 2021, a social worker carried out an assessment of Mrs Y’s mental capacity to make decisions about what care and support she needed. The outcome was she did not have capacity.
24. The Council decided Mrs Y was eligible for care and support in April 2021. Her savings were currently over the threshold for council funding. (Social care is chargeable. People who have capital above £23,250 (called ‘the capital threshold’) must pay the full cost of their care themselves. Below this, councils carry out a financial assessment and apply a charge to any care funding they agree. The charge a person pays is sometimes called their ‘client contribution’). The intention in April 2021 was for the attorneys to arrange residential care for Mrs Y, but this changed over time.
25. There was a best interests meeting in May to discuss longer-term options for Mrs Y’s care and support. The attorneys attended as well as a social worker. Options under discussion included residential care, an increase in home care hours, and live-in care in the home, temporarily. The attorneys agreed on a move to long-term residential care; Mr X would arrange live-in care temporarily until he could arrange a suitable care home for Mrs Y. The social worker explained the capital threshold of £23,250 and advised the attorneys to contact the Council’s finance team before Mrs Y’s savings reached it. The social worker gave some general information about how the Council calculated funding for residential care.
26. In the middle of May, the social worker emailed Mr X a list of six care homes with vacancies. These cost between £700 and £975 a week. There is no evidence any homes assessed Mrs Y or made her a firm offer of a place.
27. At the end of May, the social worker and Mr X spoke. He advised Mrs Y’s savings were almost at the capital threshold. He asked if it was possible for the Council to pay what it would have paid for residential care if Mrs Y were to remain in her own home with care. The social worker said this may be possible. She later confirmed it was an option if a third party paid the difference.
28. Mr X sent a number of emails from July 2021 onwards about funding for Mrs Y’s care. He confirmed at the end of July that one of the other attorneys was willing to manage a direct payment for Mrs Y.
29. Also in July, the social worker emailed setting out the documentation required for a direct payment to be set up. She explained the family could have a managed account where the Council’s client services team dealt with all the administration of the account or a self-managed account where the attorney dealt with payments to the care provider.
30. A case note of a call between the social worker and Mr Y at the end of July said the Council was willing to fund up to the enhanced residential care rate, net of Mrs Y’s client contribution.
31. The August 2021 care and support plan has an indicative (estimated) personal budget of £36,366 from 1 September 2021. Under a section called ‘Costs & payments’, the plan gave a summary of the breakdown of costs and services:
• From 23 June to 31 August, the Council will pay the full cost (£900)
• From 31 August onwards, the Council will pay the enhanced residential rate (including Mrs Y's contribution) £679.29
• Mrs Y’s maximum contribution was £380.27 to be confirmed by the finance team.
32. In August, the social worker emailed Mr X to say the funding panel had rejected the request for a direct payment because the Council had to evidence it had made an offer of residential care within Mrs Y’s personal budget. The social worker said she had been asked to search for care home vacancies and clarify the rate at which they would meet Mrs Y’s needs.
33. An email from Care Home A to the social worker at the end of August 2021 said it had a room available at £890 a week. Care Home A did not assess Mrs Y or offer her a place and the Council did not offer the family a place at Care Home A.
34. Mr X emailed the social worker to say the family were considering all options for Mrs Y including residential care. The social worker then emailed to say the Council would pay:
• The full cost of live in care from June 2021 to the end of August 2021, when Care Home A offered a placement.
• From the end of August/start of September, the enhanced residential rate of £679.
35. At the start of October, the social worker said in an email to Mr X that the Council had NOT offered Mrs Y a placement at the end of August.
36. The direct payment agreement signed by one of the attorneys (who was managing the direct payment account) in November 2021 said the Council had supported direct payment accounts where it would administer the direct payment with the person sending invoices to request payment. The Council would manage the account on the person’s behalf.
37. The records indicate the direct payment started in November 2021, with payments backdated to June 2021.
38. There was a review in January 2022. Some attorneys had changed their view about residential care and a residential placement had not been pursued for reasons which are not relevant to the complaint. There were no changes to Mrs Y’s care arrangement which was live in-care.
39. In May 2022 Mr X complained to the Council raising the matters he has complained to us about and other matters.
40. In July, Mr X emailed the Council’s complaints team to say a cap had been applied to the funding based on an offer of residential care which had not been made. He reminded the Council he had not received a response to his complaint. In August, Mr X met with two managers to discuss his complaint.
41. At the start of November 2022, there was a further social care assessment by a social worker. This was prompted by one of the attorneys informing the Council that Mrs Y’s health had declined. The attorneys took part in the assessment. The district nurses had said she was at the end-of-life stage and being cared for in bed. The attorneys said they did not want Mrs Y to move to a care home.
42. In the middle of November, the complaints team told Mr X in an email that Mrs Y’s assessed need for care was £728 for live-in care. The email went on to give a breakdown of the cost of care (the council payment and client contribution) for each month between June 2021 and April 2022.
43. Mr X had also applied for NHS continuing healthcare for Mrs Y. The Integrated Care Board (ICB), a local NHS body, is responsible for dealing with continuing healthcare funding applications. An internal email from a social worker to the ICB towards the end of November said Mrs Y’s live-in care at £1070 a week was currently the most cost-effective option.
44. Mrs Y’s care and support plan, also dated November, described the care and support she needed and how to meet her eligible needs. The funding was a direct payment for live in care at £1,170. The agreed yearly personal budget was £56,791 from 11 November. The client contribution was £218.
45. Also in November, Mr X emailed the complaints team setting out the outstanding complaints. He said:
• The funding was based on the cost of enhanced residential care. The Council had not offered a placement at this rate
• The records he had obtained indicated Care Home A confirmed its rate and then there were further searches for placements in October 2021. These would not have been needed if Care Home A had made an offer.
• The actual cost of live-in care had increased recently to £1070
• The enhanced residential rate went up in 2022/23 and had not been applied
• Additional support around administering the care package was provided and the team manager told him this was not eligible as it could be met by a care home.
46. At the end of December 2022, the NHS decided Mrs Y was not eligible for fully-funded NHS continuing healthcare. A letter to one of the attorneys said the ICB had decided to fund a percentage of the care package that was already in place as it recognised she had some incidental health needs. The letter explained the ICB and Council would jointly fund care with the NHS contributing £209 a week from 13 December.
47. The care and support plan of January 2023 said the same as the previous care and support plan (see paragraph 44). Funding was unchanged.
48. The Council’s response to the complaint in January 2023 said:
• The Council already agreed no offer of care was made until 31 August 2021 and therefore funded the full cost of live-in care from 23 June to 31 August
• On 31 August, Care Home A confirmed it could meet Mrs Y’s needs
• It made additional searches for placements after this because family members said they agreed to residential care
• The siblings are joint attorneys and need to access Mrs Y’s post to undertake the role. This is not something the Council would fund or give a DRE allowance for (DRE is an allowance in the financial assessment that can reduce a person’s contribution towards the cost of their care)
• The direct payment should have been increased from April 2022 to include the yearly increase in the enhanced residential rate and so the Council would arrange for an extra payment of £998.
• The current weekly client contribution (charge) is £218 and the weekly direct payment £851.
49. Mr X told me that the additional payments for Mrs Y’s care (the difference between what the Council was paying and the actual cost of live-in care) was paid from Mrs Y’s funds that had been excluded from the Council’s financial assessment. Mr X also told me the Council made a backdated payment of £8190 in December 2022 and that was intended to cover the weekly cost of live-in care at £1070 from 18 July.
50. Mr X also told me he/the family employed an additional member of staff to support Mrs Y’s live-in care who completed the following tasks:
• administration and co-ordination of medical records. This included making, organising and recording medical appointments.
• medication supply and records.
• transport, companionship and attendance at medical appointments, including emergencies.
• liaison between carers and maintaining consistent care logs.
• domestic management, shopping, petty cash and records.
• house maintenance, including liaison with tradesmen and NCC/NHS equipment suppliers.
• screening unexpected visitors and correspondence (and liaising with known visitors).

Findings

The Council did not offer a placement at the personal budget rate and then capped the direct payment funding based on the cost of enhanced residential care

51. The Council gave confusing and contradictory information about the funding for Mrs Y’s care and support and this was fault. There should have been a clear, prompt decision on the amount of funding the Council was prepared to give for Mrs Y’s care and support once her savings fell to the capital threshold. There were several figures in the care plans for the ‘enhanced residential rate’ including £679 (the rate for 2021/22), £728 and £762 (the rate for 2022/23). The middle figure was likely a mistake, but it made it difficult to tell what Mrs Y was entitled to.
52. The Council should have completed the process of agreeing a direct payment in a timely manner. Mr X was asking about direct payments from the start and he made a formal request for one in May 2021. The funding panel refused this in August, then reversed its decision, although the papers do not explain why. The Council then took until November to arrange and make the payments. This process was unnecessarily long, was not in line with paragraphs 12.7 and 12.22 of Care and Support Statutory Guidance and was fault.
53. The Council said in the complaint response it offered the family a placement in Care Home A at the end of August 2021. However, the only record of this is an email from Care Home A to the social worker at the end of August 2021 saying it had a vacancy costing £890. There is no evidence that Care Home A had made an assessment of Mrs Y or agreed to give her a place based on that assessment. There is no written evidence of a formal offer of a placement to Mrs Y at the time. In addition, the social worker confirmed in an email to Mr X in October that the family had not received an offer of a placement from Care Home A. The evidence does not support the Council’s view in a later complaint response that it offered Mrs Y Care Home A. The complaint response did not reflect what happened at the time. There was a failure to be clear and transparent which was fault.
54. Section 18 of the Care Act requires the Council to meet Mrs Y’s eligible needs. And Section 8 makes it clear that there is a power for the Council to discharge this duty using various options, including residential care and home care. Care and Support Statutory Guidance explains councils may consider their overall social care budget when making individual funding decisions. Read together, these provisions mean a council has power, in some circumstances, to limit care funding to the cost of residential care where it considers the needs could be met in a care home. However, to limit costs in this way, the Council needs to evidence a vacancy in a specific care home, which was willing to offer Mrs Y a place at the personal budget rate and that was actually offered to the family at the relevant time. Care Home A did not offer a place to Mrs Y. The social worker’s email of May 2021 to Mr X with a number of potential vacancies was also not adequate as this was not a confirmed off of a placement. In addition, Care Home A’s manager gave a cost of £890 which is higher than any of the Council’s quoted enhanced residential rates. So, the Council’s decision to limit Mrs Y’s funding to the enhanced residential rate was fault because Care Home A was charging more than this.
55. It was reasonable for family to continue with the existing live-in care arrangements and to use Mrs Y’s excluded capital to fund the difference, in the absence of a firm offer of residential care for Mrs Y. I do not consider they had much of a choice given the Council had limited funding and offered nothing else by way of a confirmed placement. The Council’s failure to provide a firm offer of a residential care placement caused avoidable confusion and a financial loss to Mrs Y who paid the difference between the funding the Council was providing and the actual cost of live-in care.
56. The financial loss was between 1 September 2021 and 17 July 2022. A backdated payment the Council made in December 2022 covered live-in care from 18 July.
57. The Council took from May 2022 to January 2023 to respond fully to Mr X’s complaint. Although officers met with him and answered his emails, the full response took too long and this was fault causing avoidable frustration and confusion.

The funding did not take into account administration and co-ordination

58. There is provision in Care and Support Statutory Guidance for a council to offer support to manage a direct payment, but there is no requirement to include administration and co-ordination as long as a council offers support to manage the direct payment. I am satisfied the direct payment agreement and information to the attorneys set out the option of a council-managed account. Had the attorneys taken up the option of a council-managed account, it would have meant the Council would have completed the co-ordination and administration role that the family paid someone else to do. It was open to the family to seek an alternative but no grounds for me to recommend a refund of the money paid because the Council would have provided this support with no charge.
59. There is no fault in the Council saying an attorney would be expected to read post. This is part of their role.
60. Mr X told me he employed an additional member of staff to complete some tasks related to Mrs Y’s care and support. My view is the tasks he listed fell within the role of the live-in care worker (ordering medication supplies, speaking to visitors, domestic management, handover between carers and escorting to medical appointments). My view is this could have been covered by the live-in carer and there are no grounds to recommend reimbursement of the additional expense incurred.

Mrs Y has not received the benefit of health funding paid by the ICB as this has been deducted from her direct payment.

61. The National Framework guidance explains joint packages can be commissioned by health and social care. Mr X was expecting Mrs Y’s funding to increase when she was awarded health funding. Guidance envisages joint pooling of NHS and social care funding and the NHS contributing towards a person’s personal budget. It does not say that a person’s care funding will increase as a result of care being funded jointly. There is no fault by the Council which has treated the funding as a contribution by the NHS towards the existing personal budget, probably due to Mrs Y having health related needs connected to her end-of-life status.
62. We have no power to investigate NHS organisations and so I have not commented on the ICB’s actions.

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Agreed action

63. The aim of our remedies is to put the person back into the position they would have been if there had not been fault. In Mrs Y’s case, care funding has been limited to the Council’s enhanced residential rate between 1 September 2021 and 17 July 2022. (From 18 July 2022 the Council revised the personal budget to cover the cost of live-in care.) As set out in the last section, my provisional view is there was fault by the Council in applying this limit.
64. Mrs Y therefore paid an additional amount by way of a ‘top-up’ that she should not have done between 1 September 2021 and 17 July 2022. This is a financial loss.
65. Within one month of my final decision, the Council will:
• Pay the refund due to the late Mrs Y (to her estate.) This is the difference between the enhanced residential rate and the actual cost of live-in care. I have calculated this as follows:
1. 1 September 2021 to 31 March 2022: £950 - £679 x 30 weeks: £8130
2. 1 April 2022 to 17 July 2022: £950 - £762 x15 weeks: £2820

Total: £10 950.

• apologise to Mr X and make him a symbolic payment of £250 to reflect his time and trouble complaining and repeated requests for clarification around funding.
2. Within three months, the Council will review and revise its procedures for assessment and care and support planning to ensure all staff are clear that requests for direct payments must be dealt with in a timely manner. The Council should consider setting out timescales in its revised procedures.
3. The Council should provide us with evidence it has complied with the above actions.

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Final decision

68. There was fault by the Council in the way it calculated Mrs Y’s personal budget for social care because it did not offer a residential care placement within Mrs Y’s personal budget. This caused avoidable confusion, time and trouble and a financial loss to her family. The Council will apologise and make payments set out in this statement. It will also review procedures. There is no fault in the way the Council dealt with the personal budget when Mrs Y became eligible for health funding and no fault in refusing to fund administration costs.
69. I completed the investigation.

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Investigator's decision on behalf of the Ombudsman