Leicestershire County Council (18 017 173)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 12 Mar 2020

The Ombudsman's final decision:

Summary: The Council was at fault for failing to arrange home care for Mr B within a reasonable timescale after assessing his needs. This meant he stayed in residential care for several weeks longer than he needed to. This caused Mr B and his son (who was paying a third-party top-up towards the residential care) a financial injustice, as the residential care was more expensive than the home care. The Council has agreed to remedy this by making payments to them totalling £1,100.

The complaint

  1. The complainant, whom I refer to as Mr C, complains on behalf of his father, whom I refer to as Mr B.
  2. Mr C says the Council failed to find a home care company for Mr B for several weeks after deciding he no longer needed to be in residential care. Mr C says the Council failed to tell him he could arrange Mr B’s care himself under a direct payment agreement, and this contributed to the delay.
  3. Mr C says the Council’s failures meant Mr B stayed in an expensive residential placement, which he did not need, for several weeks. He says this had significant financial implications for both Mr B and for himself (as he was paying a third-party top-up contribution for his father’s care).

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I considered information from Mr C and the Council. I wrote to Mr C and the Council with my draft decision and considered their comments.

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What I found

What should have happened?

Care and support statutory guidance

  1. This guidance tells councils how to provide services in line with the Care Act 2014. This includes guidance on reablement care and direct payments.
  2. Councils provide reablement care to people after they have left hospital, or when they are at risk of going to hospital. This care is provided for a limited period of time to assist a person to regain the ability to live independently.
  3. Councils must make information about direct payments available to people as part of the information they universally provide about social care.
  4. Councils must also make more specific information available about how direct payments can support people’s needs. This information must be made available during the care and support planning process.
  5. Councils have a role to play in promoting the use of direct payments and, while they should not force people to use the payments, they are encouraged to ‘prompt’ people to consider them.

The Council’s website

  1. The Council makes information about direct payments available on its website. It says people who are eligible for a personal budget (an amount of money allocated to meet care and support needs) can receive this money as a direct payment.

The Council’s cost-effective care policy

  1. This policy says the Council will encourage people to receive their personal budget as a direct payment so they can have increased control of their own care.

What happened?

  1. In January 2018 Mr B was in hospital receiving treatment for gout. On 17 January the hospital told the Council that he would be discharged in two days’ time, and would need some support at home to recover from his illness.
  2. The Council’s reablement team had the capacity to provide short-term care to
    Mr B. However, this was only available from 23 January. As Mr B was being discharged before then and needed support, the Council agreed that he would go into residential care as an interim measure until he could receive care at home.
  3. The Council discussed this with Mr C, and he agreed to pay a third-party top-up of £80 per week while Mr B was in residential care, so that Mr B could go to his preferred care home. The Council said Mr B himself would contribute £40 per week as a flat-rate ‘interim bed’ fee, and the Council would pay the rest.
  4. Mr B went into residential care on 20 January.
  5. On 23 January – when Mr B’s home care was due to start – his daughter told the Council that his mobility was poor and he was not ready to return home.
  6. The Council spoke to the care home, which did not have the same concerns as Mr B’s daughter. However, it told the Council that she had arranged for Mr B to stay there for a few days longer.
  7. Two days after this – and with Mr B’s daughter still unhappy with him returning home – the Council’s reablement team closed his case, because it did not know when he would be likely to access the proposed care.
  8. On 1 February the Council told Mr C that, as Mr B’s stay at the care home had been prolonged at the family’s request (rather than because he needed to stay there), it would not pay for the care. Mr C agreed that the family would pay for the residential care up to that point, but asked that the Council find a home care package without delay.
  9. The following day the Council visited Mr B and completed a care and support assessment, setting out his personal budget and the home care he needed.
  10. By 12 March the Council had been unable to find a provider to deliver Mr B’s home care, and he remained in residential care. The Council told Mr C that it was having difficulty finding a provider. It said he could have a direct payment if he could find someone to deliver the care himself.
  11. On 21 March Mr C asked the Council, again, when it was going to deliver home care to Mr B. It told him about direct payments again.
  12. When Mr C agreed to direct payments, care was arranged for Mr B within a week (starting 26 March). Mr B contributed around £40 per week towards this care.
  13. In May the Council completed a financial assessment of Mr B. It decided he could contribute £179.09 per week from 23 January to 25 March (the period he was in residential care but did not need to be). It sent Mr B an invoice for £1,609.08.
  14. The Council also sent Mr C an invoice for £754.29 – his £80 weekly top-up fee for the entire period Mr B was in residential care.

My findings

  1. It was not the Council’s fault that Mr B was still in residential care in late January 2018. It had arranged reablement care fairly quickly after his discharge from hospital, and had only intended his stay in the care home to be a short one. It was his family’s choice that he did not immediately return home.
  2. However, when the Council completed its reassessment of Mr B’s needs on
    2 February 2018, his family accepted that he did not need to be in residential care and asked the Council to arrange care for him at home.
  3. At that point, the Council should have arranged a suitable care package within a reasonable timescale. Although Mr B’s needs were clearly being met in the care home, he was paying a contribution towards a service which was completely disproportionate – by the admission of all involved with his care.
  4. The Council failed to arrange an alternative. Because of this, I have found that it was at fault.
  5. The Council also had a duty to provide information about direct payments. It should have done this when it completed its reassessment in early February.
  6. Although the Council makes information about direct payments clearly available on its website, its records suggest that it did not provide specific information about them to Mr C (who was supporting Mr B to make decisions about his care) until 12 March – over five weeks after completing its reassessment.
  7. This was also fault by the Council.
  8. Given how quickly care was arranged once Mr C agreed to direct payments, there is a good chance that – had he been told about them sooner – care may have been arranged sooner. Because of this, it is my view that the Council’s failure to tell Mr C about direct payments significantly contributed to the overall delay.
  9. As Mr B’s needs were being met in residential care, he did not miss any support which he could have got at home. However, he did experience a financial injustice. In residential care he paid a contribution of around £140 per week more than when he subsequently received care at home.
  10. The Council should remedy Mr B’s injustice by making a payment equal to £140 per week for five weeks (which is the period in which the Council failed to tell
    Mr C about direct payments).
  11. Mr C also experienced an injustice, because – for that five-week period – he was paying a third-party top-up fee, which he would not have needed to do if the Council had arranged Mr B’s home care sooner.
  12. The Council should also make a payment to Mr C equal to five weeks’ worth of top-up fees.

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Agreed actions

  1. The Council has agreed to make a payment of £700 to Mr B to recognise that he paid towards residential care – which he did not need – during a period in which the Council failed to arrange home care for him.
  2. The Council has also agreed to make a payment of £400 to Mr C to recognise that he paid a third-party top-up fee for Mr B’s unnecessary residential care during the same period.
  3. These actions should be completed within six weeks of the date of this decision statement.

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Final decision

  1. The Council was at fault for failing to arrange home care for Mr B within a reasonable timescale after assessing his needs. It was also at fault for failing to provide information to Mr C about direct payments for five weeks after assessing Mr B’s needs.

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Investigator's decision on behalf of the Ombudsman

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