Summary: Ms X complained the Council delayed assessing her mother, Mrs Y’s care needs and setting up direct payments. The Council was at fault. It delayed assessing Mrs Y’s care needs and failed to properly consider her night time support needs. As a result, Mrs Y has had to fund her own care for longer than necessary and the personal budget may not be sufficient to meet her needs. The Council has agreed to review Mrs Y’s care needs and personal budget and backdate this as necessary. It has also agreed to apologise to Ms X and pay her £150 to acknowledge the frustration and time and trouble caused. It will also remind staff of the need to properly assess all care needs, including any need for night time care

The complaint

1. Ms X complains the Council delayed completing a care needs assessment and setting up direct payments for her mother Mrs Y. She says because of the delay her mother had to self-fund her care longer than she should have. She would like the Council to backdate the payments.

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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 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 have considered the information provided by Ms X. I have considered the Council’s response to my enquiries and the relevant law and guidance.
5. I gave Ms 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

The relevant law and guidance

6. The Care Act 2014 and the Care and Support Statutory Guidance set out how councils must assess and meet identified needs for care and support.

Assessment of need

7. 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 set out how it will meet those needs in a care and support plan.
8. The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan. The care and support plan should consider what 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.

Personal Budgets

9. The council must set a personal budget as part of the care and support plan. The personal budget is the money the council has worked out it will cost to arrange the necessary care and support for that person.
10. Where local authorities have determined that a person has any eligible unmet needs, they must meet these needs.
11. Councils must take into consideration a person’s preferences. However, recent case law (R (Davey) v Oxfordshire County Council) found while a claimant’s preferences had to be taken into account, these had to be distinguished from their needs for care. The court of appeal found the Council’s duty is not to achieve the outcomes which the individual wishes to achieve but to assess whether the provision of care and support would contribute to those outcomes. The wishes of the individual may be a primary influence, but they do not amount to an overriding consideration.
12. The guidance sets out that, in determining how to meet needs, a council may also take into reasonable consideration its own finances and budgetary position. This includes the importance of ensuring that the funding available to the council is sufficient to meet the needs of the entire local population. It says the council ‘may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met). However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centered or compatible with public law principles. 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’.
13. The guidance also sets out ‘the detail of how the personal budget will be used is set out in the care and support plan, or support plan. 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’.
14. Once an individual’s capital falls below £23,250, they are entitled to access council support to meet their eligible needs. The council will assess the person’s finances to decide what contribution he or she should make to their personal budget for care.

Direct payments

15. Direct payments are cash payments made by the council to individuals, allowing them to arrange and pay for the provision themselves.

What happened

16. Mrs Y lives at home with her husband. She has dementia. Mr Y has his own health issues. Mrs Y’s daughter, Ms X, lives abroad. She has lasting power of attorney for Mrs Y’s health and welfare. Ms X visits regularly and is fully involved in arranging Mrs Y’s care. Mr and Mrs Y were self-funding a care package of four visits a day plus waking night support for Mrs Y. Mr and Mrs Y were running out of savings, so in late July Ms X contacted the Council to request support.
17. On 3 August 2021 Ms X spoke with a social worker who agreed to pass the case for allocation for a care needs assessment and financial assessment. Ms X contacted the Council again twice in September to chase progress as the situation was becoming more urgent. The Council advised the case was awaiting allocation. The Council notes record Ms X was aware the Council would not pay for waking nights. Ms X says she was not given a definitive reason why the Council would not pay for waking night sits other than that level of need would need a residential placement which she said was not appropriate for Mrs Y at the current time.
18. A social worker contacted Ms X on 13 October and started completing a needs assessment and the paperwork for direct payments to cover the cost of the day time care package. They noted the family would pay for waking night support. The notes record this would be reviewed by an allocated worker for a full assessment of Mrs Y’s long term care needs.
19. Mrs Y was admitted to hospital for a short period in October 2021. Ms X contacted the Council in early November after Mrs Y’s discharge. The social worker advised the case would be allocated as soon as possible. Ms X spoke to an officer regarding the financial assessment and direct payments. She agreed to complete the necessary paperwork. However, the finance officer noted they could not advise Ms X further without knowing the number of hours of support required. Ms X completed and returned the paperwork in early December. The Council also carried out a financial assessment which calculated Mrs Y’s contribution to her care costs as nil.
20. Ms X complained to the Council in early December 2021. She said they had self-funded Mrs Y’s care since January 2021 and had been seeking a social worker since the summer. She said they owed money to the care agency and needed a social worker to approve the care hours so they could receive the direct payments.
21. The Council responded to Ms X’s complaint in mid-December. It said the paperwork for a direct payment was completed in early December. It said it received the original referral in July and work on the case started in late September. As Mrs Y was already receiving support, it was assured she was safe and her needs were met. Therefore, an assessment was not required urgently. It acknowledged that when Mrs Y was discharged from hospital there was no social work involvement. It said the case should have been identified as a priority when it was transferred back from the hospital team. It said it would backdate the direct payment to 13 October.
22. A Council officer spoke to Mrs Y over the telephone in late December 2021 to complete a full care needs assessment. They also spoke with a care worker and Ms X. They noted Mrs Y required full support to meet all her daily needs including personal care, dressing, continence care, medication, and meal preparation. She needed support to maintain her home and to access the community safely.
23. They noted Ms X requested support via a direct payment so Mrs Y could remain in her own home with continued support from the current carers. Mr and Mrs Y had been married for many years and spent all their time together. The care agency reported it managed the care using a small group of care workers who knew her well. They noted Mrs Y tended to get more agitated in an evening and got up regularly in the night. They noted she may get up during the night up to twenty times if she was upset or agitated. Her mobility and moods were very changeable. Ms X reported Mrs Y currently received support from care workers four times a day and with seven night sits per week. Her savings had now dropped below the threshold and required support to fund her care. The officer noted the Council ‘are unable to contribute to night sits and daughter will continue to fund these herself’.
24. The officer noted all involved agreed it was best for her to remain within her own home for as long as possible, in a familiar environment and surrounded by people who knew her well. The officer noted the Council would backdate the payments to 13 October 2021. The officer recorded in the case notes that Ms X was unhappy with this and considered the funding should be backdated to August.
25. Mrs Y’s support plan set out a personal budget of £364 a week from mid October 2021 for four one hour visits a day.
26. Ms X remained unhappy and complained to us about the Council’s delay in assessing Mrs Y’s needs and its refusal to backdate the direct payments any further.

Findings

27. Ms X first contacted the Council to discuss getting a needs assessment for Mrs Y in late July 2021. The Council did not start assessing Mrs Y’s needs until mid-October 2021 and Mrs Y did not receive the direct payments until December 2021. The law and statutory guidance do not set out a timescale for completing a needs assessment and care and support plan. However, I consider it reasonable for a council to carry out a needs’ assessment, complete a support plan and arrange direct payments within six weeks of the initial request. The delay was fault.
28. The Council said it did not prioritise Mrs Y’s needs assessment as it was aware her needs were being met. While the Council is entitled to prioritise assessments, Mrs Y should not have been financially disadvantaged by its decision. I therefore consider the Council should backdate Mrs Y’s direct payments to 10 September, six weeks after Ms X first requested a needs assessment which also caused Ms X frustration and time and trouble.
29. The Council told Ms X it would not fund the night sits. The statutory guidance says the personal budget must cover the cost of meeting the person’s needs. The needs assessment and support plan show Mrs Y received waking night sits and got up frequently in the night. However, it recorded the Council would not fund night sits. The needs assessment and support plan do not clarify whether the Council considered Mrs Y required support in the night to meet her care needs and the personal budget failed to consider any requirement Mrs Y may have for support during the night. This is fault.
30. The Council can consider the cost of different care options when allocating personal budgets. Case law supports councils being allowed to limit budgets based on meeting needs not preferences. However, the personal budget must reflect the cost of meeting the person’s needs, and councils cannot have arbitrary ceilings for personal budgets. To simply refuse to pay for night sits without properly exploring whether these were required or whether there were suitable alternatives available was fault.
31. It is not for the Ombudsman to say what support Mrs Y requires. However, the Council has failed to holistically assess Mrs Y’s care needs which leaves uncertainty around whether she has sufficient funding to fully meet her care needs.

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Agreed action

32. Within one month of the final decision the Council has agreed to:
1. review Mrs Y’s needs assessment and support plan to determine whether Mrs Y requires night time support.
2. backdate the personal budget to 10 September 2021.
3. apologise to Ms X and pay her £150 to acknowledge the frustration and time and trouble caused by the Council’s faults.
33. If Mrs Y’s personal budget increases following the review, within two months of the final decision the Council should establish how much Ms X and Mr and Mrs Y have paid to cover the shortfall and repay this in full, back dated to 10 September 2021.
34. Within one month of the final decision the Council has also agreed to remind staff of the need to properly assess all aspects of a person’s care needs, including whether night support is required and if so, how this need can be met.

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Final decision

35. I have completed my investigation. The Council was at fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman