Summary: Mr X complained the Council failed to ensure his late mother, Mrs Y, had sufficient personal budget to fund her care costs, delayed reassessing her needs and failed to properly consider his request for disability related expenditure in her financial assessment. The Council was at fault for not clearly setting out Mrs Y’s personal budget in her support plan, for significant delay in reviewing her care needs and for failing to properly consider Mr X’s request for disability related expenditure. This caused Mr X frustration and uncertainty and meant Mrs Y and the family had to cover some of the care costs for longer than they should have. The Council has agreed to apologise to Mr X, backdate the revised personal budget to January 2023, review the disability related expenditure and provide guidance to staff.

The complaint

1. Mr X complained the Council failed to ensure his late mother Mrs Y had sufficient personal budget to fund her care package and failed to carry out an annual review of the care package.
2. In addition, Mr X complained the Council delayed carrying out a financial assessment, unfairly backdated the revised care charges and failed to properly consider his request for disability related expenditure.
3. Mr X says this has left Mrs Y without sufficient funds to cover her care costs and has caused him distress and frustration.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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

8. I have considered the information provided by Mr X and have discussed the complaint with him on the telephone. I have considered the Council’s response to my enquiries and the relevant law and guidance.
9. I gave Mr X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

Relevant law and guidance

10. Councils 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 results they want to achieve. If a council decides a person has eligible needs, it must meet those needs and set out how it will meet them in a care and support plan. (Sections 9-26 Care Act 2014)
11. 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 local authority must involve any carer the adult has. Sections 24 and 25 of the Care Act 2014 contains details of what a care and support plan must contain.
12. The council must set a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning. It should confirm the final amount of the personal budget through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs. The personal budget can be delivered as a commissioned care package or as a direct payment.
13. 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. (s.11.7 Care and Support Statutory Guidance).
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. 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 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. (s.10.27, Care and Support Statutory Guidance)
16. 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.

Mental Capacity Act

17. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves.

Lasting power of Attorney

18. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests. There are two types of LPA: property and finance and health and welfare.

Charging for care and support

19. In charging for care, 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) Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment.
20. Councils can take disability-related benefit into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs it is not meeting. The Care and Support Statutory Guidance sets out a list of examples of such expenditure. It says any reasonable additional costs directly related to a person's disability should be included. What counts as DRE should not be limited to what is necessary for care and support. For example, above average heating costs should be considered.

What happened

21. Mrs Y had dementia. She lived at home with a package of four calls a day. The Council assessed her as needing to pay £127.50 per week towards the cost of her care package. In September 2021 Mrs Y was admitted to hospital due to progressively aggressive behaviour related to her dementia. Mrs Y’s son and daughter Mr X and Mrs Z had LPA for Mrs Y’s finances and health and welfare. In October 2021 they agreed to Mrs Y’s discharge to a care home for a period of assessment. This was initially funded by the NHS.
22. In late October 2021 the Council completed a mental capacity assessment and concluded Mrs Y did not have capacity to decide where she should live. Mr X and Mrs Z considered it was in Mrs Y’s best interests to return home with a live in carer. The social worker completing the assessment noted ‘If I was the decision maker I would probably lean towards the decision of [Mrs Y] remaining at [the care home] long term. Nonetheless [Mrs Y’s LPAs] have in unison decided that the option of live in care would be in [Mrs Y’s] best interests’. The meeting agreed the option to return home with a live in carer was in Mrs Y’s best interests. The social worker ticked ‘no’ in relation to ‘are there any conflicts or disagreements with regard to this decision’.
23. The social worker completed a care needs assessment. In the assessment they noted “funding arrangements were discussed with [Mr X and Mrs Z] and what source of funding can be offered by the local authority considering the best value. My professional opinion, [Mrs Y] due to her challenging behaviour and being unable to keep herself safe should remain in a residential environment.….[Mr X and Mrs Z] were advised about the local authority’s rates towards care in a dementia residential care home versus the cost of live in carer and they were both in agreement to top up funds to cover the cost of live in provision through a third party top up or equity release”. The assessment later noted Mr X and Mrs Z have made a decision for [Mrs Y] to return home, following her short stay at [the care home]…with a live in carer. The cost of the service will be partially funded by the local authority and the rest of the cost will be covered by [Mrs Y] through an equity release from her property’.
24. In November 2021 the social worker sought approval from a senior officer for a personal budget of £753.98. They said Mr X and Mrs Z had agreed to top up funds to cover the cost of live in provision through third party top up or equity release. The senior officer agreed to this but advised that if costs increased, they may need to look again at meeting Mrs Y’s needs through residential care. The social worker responded that the family were fully aware of this.
25. Mrs Y’s support plan set out a personal budget of £753.98 per week. It said Mr X and Mrs Z had made a decision for Mrs Y to return home with a live in carer. It said the cost of the service would be partially funded by the local authority and the rest will be covered by Mrs Y through an equity release from her property.
26. In November 2021 the case notes record the social worker advised Mr X the Council had approved funding of £753.98 per week towards the cost of Mrs Y’s care package which was the cost of a place in a dementia residential care home. They noted Mr X agreed to this and had approached a care agency. They followed this up with an email to confirm this budget included Mrs Y’s assessed contribution and that Mr X had agreed to top this up with equity release or by family funding the extra. The email noted if Mrs Y was no longer able to fund the package or deteriorated further the Council would look to meet her needs in a residential care or nursing setting.
27. Mrs Y went home in early December 2021 and started receiving support from a live in carer. She continued to pay £127.25 per week towards the cost of her care package. The Council provided direct payments of £626.73 per week, giving a personal budget of £753.98. The cost of live in care was £1,155 per week.
28. In May 2022 the Council wrote to Mrs Z that it needed to complete a new financial assessment of Mrs Y. In October 2022 an officer emailed Mr X about the financial assessment and requested information. Mr X responded and explained he had to bridge the gap between the budget and care fees and had a loan agreement with Mrs Y so that the contributions would be eventually reclaimed from the value of the property. The Council officer agreed to speak with the social work team. Mr X requested DRE for items including Mrs Y’s phone line and broadband.
29. The Council wrote to Mr X in November 2022 to advise Mrs Y’s contribution had increased to £163.88 per week backdated to April 2022. It advised Mr X that the phone line and broadband was not disability related expenditure but a usual household expense. Mr X asked to appeal the decision. He said the phone line and broadband was only required to support the careline and cameras installed at the house. It was not a choice but a necessity. Mr X said the cameras were used to monitor Mrs Y whilst the live in carers were on their two hour daily break. He said Mrs Y’s income was £1800 a month less than her outgoings each month. He requested a review. The council officer advised Mr X to contact adult social care if the care was not sustainable.
30. Mr X spoke with a team manager in the finance department about his appeal. He also requested a review of Mrs Y’s care needs. The officer noted they would contact adult social care and request a review and that they would respond to Mr X about the DRE.
31. In February 2023 the Council wrote to Mr X to refuse his appeal. It said ‘the careline does not require broadband access to function. The expenditure on a telephone line, which is necessary for a careline to operate, is considered to be a common household expense’. It said it would be reasonable for Mrs Y to pay this from her income. Mr X remained unhappy and requested a further review
32. The Council responded in March 2023. It said it noted Mr X’s view that the line was solely used for the careline and cameras and Mrs Y was unable to use it and this it was required particularly when Mrs Y’s carer took a break. However it It did not uphold the appeal. It said ‘it is important that the local authority has an equitable approach to charging and we have many customers who have phone lines essential for careline but this was still considered a normal household expense and not included as DRE. Additionally, your mother Y has a significant personal budget from the Local Authority which contributes towards her live in care and this provision covers supervision requirements’.
33. In March 2023 the Council amended Mrs Y’s contribution to £144.84 a week to allow for increased energy costs. In May 2023 the Council sent Mr X an invoice for the backdated arrears of Mrs Y’s contribution. It has agreed to place the collection of the arrears on hold during Mr X’s complaint to us.
34. In June 2023 the Council contacted Mr X to arrange a review of the care package. This was carried out in August 2023. The assessment noted the cost of the care package currently stood at £1200 a week and the family paid £446.02 to meet the weekly shortfall. It noted the budget as it stood was not sustainable in terms of meeting the contribution and top up costs. It noted the transition to residential care would not be appropriate given Mrs Y’s previous experiences and that the least restrictive option would be for Mrs Y to live at home with a live in carer.
35. Following two further meetings in October 2023, the Council shared the assessment with Mr X. This recommended the Council met the cost of live in care for three months to allow full exploration of funding streams and for consideration of equity release. Mr X says the Council has since agreed to a weekly budget of £1200 which, in November 2023, it agreed to backdated to June 2023.
36. Mrs Y died in early 2024.

Findings

Ms Y’s budget for her care and support

37. The Council has a duty to meet unmet eligible care needs. It has to consider but does not have to meet preferences as the High Court confirmed in the Davy case referenced above. It is entitled to take into reasonable consideration its own finances and budgetary position. However, it should not set arbitrary limits on the costs it is willing to pay to meet needs through certain routes.
38. The Council carried out a mental capacity assessment and determined Mrs Y did not have the capacity to make her own decisions about where she should live. The Council therefore considered which of two options were in Mrs Y’s best interests: for her to stay at the care home or return home with live in care. Although the social worker expressed reservations at the decision, the meeting concluded the least restrictive option was for Mrs Y to return home with live in care.
39. However, Mrs Y’s needs assessment set out the social worker’s professional opinion that due to Mrs Y’s challenging behaviour and being unable to keep herself safe she should remain in a residential environment. This contradicts the conclusion they reached as part of the mental capacity assessment. This is fault and leaves a sense of confusion over whether the Council properly considered, as the law requires, whether Mrs Y’s needs were best met at home or in residential care. The Council needed to make this clear decision, as a sound basis for determining what personal budget Mrs Y needed.
40. There is no formal mechanism for a family to pay for top up for care in a person’s own home. But a council cannot stop people (usually family) from paying for extra care if that is what they want to do, to ensure someone remains at home. Evidence shows Mr X and Mrs Z wanted Mrs Y to be cared for at home and agreed to fund the difference in the care costs from equity release or through top up.
41. Where a council decides a person’s needs can be met at home it must be satisfied that the personal budget is sufficient to meet the person’s care and support needs. In such situations the care and support plan should specify the care, support and adequate personal budget required to meet the person's eligible needs over and above anything provided informally by friends and family. It must set out what needs are covered by the personal budget and which by family support/funding. The support plan prepared by the Council simply specifies a budget equivalent to the cost of residential care. It does not clearly set out how the Council has satisfied itself Mrs Y’s needs will be met and is therefore fault.
42. However, I cannot say, even on the balance of probabilities, that had this been done properly it would have made a difference financially to Mrs Y or that Mrs Y would have received a larger budget. If the Council had done this properly Mrs Y may have been in a different situation but not financially any better off. Injustice from this fault is therefore in the form of avoidable uncertainty for Mr X.

Review of Mrs Y’s care needs

43. Mrs Y returned home in November 2021. The Council should have completed a review of her care needs in November 2022 and Mr X specifically requested a review in November 2022 due to the financial difficulties he was facing in paying for care to meet Mrs Y’s needs. This review was not started until June 2023 and not completed until November 2023 – a year after it was requested. This delay was not in line with the statutory guidance and was fault. Based on its severely delayed assessment, the Council agreed to backdate Mrs Y’s revised budget to June 2023 when the assessment started. A review normally talks six to eight weeks to complete. On the balance of probabilities, I am satisfied, if the review had been started promptly, following the November 2022 request and done on time, the Council would have decided in January 2023 that Mrs Y was settled at home, the live in care was working and would have increased the budget at that time. Instead, as result of the fault, Mrs Y and family members have had to fund the difference in that time so have been affected financially.

Financial assessment and disability related expenditure

44. The Council is entitled to charge for care and support. The records show it properly assessed Mrs Y’s finances in line with the legislation. The Council delayed completing the review of Mrs Y’s finances and that was fault. However, Mr X was aware the review was due to happen, that Mrs Y was required to pay a contribution and that any decision would be backdated so I cannot say the delay caused a significant injustice.
45. However, the Council failed to properly consider whether the cost of Mrs Y’s broadband and phoneline should be considered as DRE. The review responses focused solely on the telephone line and not the requirement for the broadband so family could monitor Mrs Y whilst carers were on their breaks. The Council failed to properly consider Mrs Y’s individual circumstances and that she could not, and did not use, the phone or broadband but these were specifically provided to meet her care and support needs. Instead, it referred to others having a phone line where it was considered a normal household expense. The Council also referred to the size of Mrs Y’s personal budget which is irrelevant in deciding whether something should be considered as DRE. This was fault. Mrs Y therefore may have been required to pay a higher contribution to her care costs than she should have.

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Agreed action

46. Within one month of the final decision the Council has agreed to:
1. Apologise to Mr X for the frustration and uncertainty caused.
2. Backdate Mrs Y’s revised budget to 1 January 2023 and pay the difference to Mrs Y’s estate.
3. Review Mrs Y’s financial assessment to consider whether, in the particular circumstances of her case, it should allow of the cost of broadband as DRE. If it decides to do so it should backdate this to April 2022 and revise any debt/ refund any over-paid contributions.
47. Within two months of the final decision, the Council has agreed to provide guidance/training to relevant staff on ensuring support plans clearly set out how the personal budget will meet an individual’s needs.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I have completed my investigation. The Council was at fault, causing injustice which it has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman