Summary: The evidence shows the Council based its calculation of the late Mrs X’s personal budget on a comparison with the cost of a residential care placement, which would not have met Mrs X’s needs. This also led to a care home contacting Mrs X about an assessment which caused considerable distress. There was a delay in setting up the Direct Payments. The Council agrees to apologise for its shortcomings here and make a payment which reflects what the actual personal budget should have been.

The complaint

1. Mrs A complains about the way the Council assessed her late mother’s financial contribution towards the cost of her care. In particular she complains that the Council delayed in putting Direct Payments in place, rang her when she was in hospital when it had been asked not to, and that its action caused a care home to contact her mother against her will. She says the Council’s failing caused her considerable distress as well as financial anxiety.

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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 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)
3. 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

4. I considered all the information provided by the Council and by Mrs A. We spoke to Mrs A. Both Mrs A and the Council had the opportunity to comment on a draft of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

5. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, 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)
6. 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.
7. Everyone whose needs the council meets must receive 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.
8. There are three main ways a personal budget can be administered:

• as a managed account held by the council with support provided in line with the person’s wishes;
• as a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes; or
• as a direct payment.

(Care and Support Statutory Guidance 2014)

9. The Care and Support Statutory Guidance says, “Local authorities should ensure that the method used for calculating the personal budget produces equitable outcomes to ensure fairness in care and support packages regardless of the environment in which care and support takes place, for example, in a care home or someone’s own home. Local authorities should not have arbitrary ceilings to personal budgets that result in people being forced to accept to move into care homes against their will.” (11.22)
10. A council should be able to show the personal budget is sufficient to meet the eligible care needs set out in the care plan, and that it has not fettered its discretion by setting a ceiling on what it will pay for 24-hour care (typically the equivalent of cost of residential care).

What happened

11. Mrs X was an elderly lady who required 24-hour care. From June 2020 until 2023 her live-in care was funded through Direct Payments. The Council says “The DP was initially put in place during Covid, and funded under covid arrangements at that time, with funding from central government. (Mrs X) did not pay a contribution towards her care from June 2020 until April 2023. No financial assessment had been undertaken to assess (Mrs X) for a financial contribution towards her care.” Mrs A says there was a financial assessment of Mrs X in 2020.
12. The Council carried out an assessment of Mrs X’s mental capacity in March 2023. The assessment concluded, “It is my professional opinion that (Mrs X) remains at home with the support of the live-in carer until a time when her needs cannot be met at home. Considering that (Mrs X) does not like people coming into her house, it is likely that if she was moved to a care home, having different carers and been in a new environment may negatively impact on her mental health.” The care plan review undertaken at the same time says, “It is my professional recommendation that (Mrs X's) package of care is appropriate to enable her remain in her own home for as long as possible”.
13. The Council undertook a financial assessment in April 2023. Mrs X had assets above the upper threshold amount and so was no longer eligible for financial assistance.
14. In June 2023 Mrs A contacted the Council as her mother’s savings had fallen below the threshold.
15. The Council carried out a financial assessment. Mrs A wrote to the Council with the completed forms on 12 June. She said “If there is anything else you need please contact me. There might be a slight delay as I’m having an operation tomorrow.” Mrs A says despite her email, an officer tried to telephone her while she was in hospital. An email from the same officer on 13 June starts, “Follow up from my phone call…”
16. The Council wrote to Mrs X on 13 June saying that after an initial financial assessment, her contribution to the cost of her care would be £790.88 a week. It wrote to her on 14 June saying the weekly contribution would be £570.79. It wrote again on 31 July, after correspondence from Mrs A, saying the weekly contribution would be £377.59. The Council now accepts “the letters could have been more explicit in explaining the change in the contribution because of additional information being received”.
17. The Council says “(Mrs A) wanted her mother to remain at home…. there was a comparative cost to meet (Mrs X’s) assessed needs in a care home, at the cost of £931.56p per week. (Mrs A) chose not to accept this offer and to request (Mrs X)’s personal budget as a direct payment, to purchase care from a preferred provider”.
18. The Council adds, “(Mrs X’s) assessed client contribution was £377.59. The personal budget was £931.56 and there was a top up required of £448.44 in order to meet the cost of the preferred provider - £1380.”
19. Mrs A says the Council offered three options over the telephone - £931 towards the cost of care at home, a placement for £931 at a named care home, or a placement at a different care home which the family could top up with additional payments (although she says it only offered two options in writing). She says the care provider which the Council had contacted about pricing contacted her at home, against her wishes, to make arrangements to assess Mrs X for residential care. The Council accepted this should not have happened and apologised.
20. Mrs A complained to the Ombudsman. She said the Council’s actions have caused considerable stress and anxiety. She says the social worker who reviewed Mrs X’s care in March 2023 agreed she should remain at home so she does not understand why the Council did not obtain comparable costs for a live-in carer rather than the residential placement which was not suitable for Mrs X. She says it took 16 weeks, which she says was an unacceptably long time, for the Council to make the first Direct Payment and the care agency which had continued to look after Mrs X was chasing her for money. The Council accepts this was a delay but says it did not impact on the care and support provided to Mrs X. it says there was a delay in allocating the case to a new social worker after the previous social worker left.
21. The Council says “There was a delay in starting the payments as (Mrs A) was disputing the financial assessment. (Mrs A) then accepted the offer, and the direct payment paperwork was then progressed, however it does take several weeks to set up a direct payment. The previous care package had already been closed, so the direct payment process had to be restarted.”

Analysis

22. It was not fault on the part of the Council to undertake a financial assessment. However, there were faults in the way that was conducted, for example telephoning Mrs A on a day she had said she would be in hospital and unavailable. That caused Mrs A additional stress and anxiety.
23. The Council’s response emphasises that Mrs A wanted her mother to remain at home, but its records are clear that it was the “professional judgement” of the assessing social worker that Mrs X should remain in her own home as long as possible.
24. The Council based its calculation of Mrs X’s personal budget on the comparative cost of a care home placement. That was not acting in accordance with the guidance and did not, as the guidance demands, “ensure fairness in care and support packages regardless of the environment in which care and support takes place, for example, in a care home or someone's own home”. It also led to a distressing situation where the care home which the Council had contacted then approached Mrs A about an assessment visit which was neither wanted nor needed. That was fault on the part of the Council.
25. A delay of 16 weeks in setting up the Direct Payments was unacceptable.
26. I am not confident that the personal budget which the Council reached was correct, given its methodology which relied on a comparator with residential care. Mrs X has now died but the invoices remain to be paid from the estate.

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Agreed action

27. Since my draft decision the Council has reviewed the way in which it calculated Mrs X’s personal budget to ensure its fresh calculation takes into account its assessment that Mrs X’s needs would be better met in her own home.
28. The Council has reached that calculation and within one month it will make a payment to Mrs A of £8969.43 and issue fresh invoices as appropriate.
29. The Council agrees it will apologise to Mrs A and offer a payment of £500 for the distress and anxiety its actions have caused.
30. The Council should provide us with evidence it has complied with the above actions.

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Final decision

31. I have now completed this investigation on the basis there was fault in the calculation of the personal budget which caused injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman