The Ombudsman's final decision:
Summary: the Council is at fault for its approach to calculation of a suitable budget for Mr B’s mother’s care needs. An apology, changes to procedures, recalculation of the budget and backdating, payment of £1,275 towards Mr B’s legal expenses and payment of £500 is satisfactory remedy for the injustice caused
- The complainant, whom I shall refer to as Mr B, complained the Council:
- failed to take action on poor provision of care by a care provider between April 2013 and April 2014;
- refused to adequately cover the costs of his mother’s care needs from April 2014; and
- in calculating his mother’s contribution to care costs, failed to consider the extra costs his mother incurs for the living costs of her live-in carer.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints of fault where someone says it has caused them injustice. If the Ombudsman finds fault but no injustice, he will not ask a Council to provide a remedy. If he finds both fault and injustice, he may ask for a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
How I considered this complaint
- As part of the investigation, I have:
- considered the complaint and Mr B's comments;
- made enquiries of the Council and considered the comments and documents the Council provided;
- considered the Council’s comments on my draft decisions; and
- considered Mr B’s comments on my draft decisions.
What I found
- Mr B’s mother has a diagnosis of Alzheimer’s and severe visual impairment.
- On 22 March 2013 the Council received a referral for an assessment for Mr B’s mother’s care needs. The Council carried out an assessment on 3 April and identified needs for support for personal care, meal preparation and support to take medication. The Council set up a package of care with a care provider. The Council calculated Mr B’s mother’s contribution as £90.26 a week and an indicative budget of £136 per week. The Council told Mr B to provide details of any disability related expenditure which could affect the client contribution.
- Following an appeal the Council told Mr B’s mother on 16 April her new contribution would be £46.57 a week from 29 May. That amount included some disability related expenditure. The Council reduced Mr B’s mother’s contribution to £39.34 a week after considering extra disability related expenditure.
- The Council reviewed the care package on 16 May and Mr B raised no concerns.
- On 28 May Mr B’s brother reported carers missing visits or not staying for the allotted time. The Council checked with the care agency which reported Mr B’s mother cancelling visits and turning away carers. The Council identified almost all visits were according to the schedule.
- Mr B reported further missed visits on 11 July. The Council checked and identified a couple of visits missing where carers could not gain access. The agency reported Mr B’s mother turning down meals. The Council later cancelled the lunchtime visit on a Thursday, agreed with the family.
- On 21 October Mr B asked for a reassessment following a decline in his mother’s health. The Council increased the care temporarily.
- On 6 November Mr B reported rotten food in the fridge and asked for carers to carry out regular food shops. The Council issued a reminder to the care agency for carers to check the food in the fridge.
- On 17 February 2014 Mr B asked for a reassessment as he did not consider the current care provision enough. The Council reintroduced lunch visits in response.
- On 17 March Mr B raised concerns about the quality of care provided. The Council carried out a reassessment on 20 March and agreed to find a new care provider. The Council gave the care provider notice and Mr B found an alternative provider. That care provider cost £420 per week, compared to Mr B’s mother’s indicative budget of £207 per week. The Council says Mr B’s family agreed to top up the remaining £213.
- On 16 June the Council’s social worker told the family she would ask for a review of the budget to see whether the Council could cover more of the care package. At that point the Council was funding 10.5 hours of the 21 hours provided. The later assessment recorded Mr B’s mother was slower in her movements and not getting out of the house as much. The Council increased the budget to £356 a week which covered 16 hours.
- On 31 December Mr B told the Council he wanted to arrange live in care. Mr B employed a care agency to provide live in care on 20 January 2015. Following a reassessment the Council increased the personal budget to £485 per week. The amount awarded reflected the equivalent cost of a residential care home placement as the Council believed Mr B’s mother needed 24-hour support. As the Council recognised Mr B’s mother did not want to go into a care home it agreed to offer her a personal budget equivalent to the cost of residential care.
- On 26 February 2015 the Council carried out a mental capacity assessment. That decided Mr B’s mother did not have capacity to make her own decisions. The outcome of that assessment was for a best interest meeting to be arranged.
- The Council carried out a reassessment on 18 August. That decided Mr B’s mother had declined physically and cognitively.
- The Council held a best interest meeting on 24 August. That decided there were three least restrictive options:
- Live in carers;
- living with her son; or
- moving to a residential home.
The Council's duty to meet eligible needs
- Section 9 of the Care Act 2014 says where it appears an adult may have needs for care and support, the Council must assess whether the adult does have needs for care and support and, if the adult does, what those needs are.
- Where a local authority has assessed an adult has needs for care and support, it must decide whether any of those needs meet the eligibility criteria. The local authority then has a duty to meet the eligible needs in certain circumstances.
- ‘Meeting needs' recognises that everyone's needs are different and personal to them. Local authorities must consider how to meet each person's specific needs rather than simply considering what service they fit into (paragraph 1.10 of the Care and Support Statutory Guidance ('the Statutory Guidance')).
- 'Meeting needs' is an important concept under the Care Act 2014 and is intended to be broader than a duty to provide or arrange a particular service. The purpose of the care and support planning process is to agree how a person's needs should be met, and how the local authority will discharge its duty to do so. (paragraph 10.10 of the Statutory Guidance).
- Paragraph 10.27 of the Statutory Guidance says:
- '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 local authority is sufficient to meet the needs of the entire local population. The local authority 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-centred 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 outcome desired for the best value.'
- 'Where an individual has been assessed as lacking capacity to make a particular decision, then the local authority must commence care planning in the person's best interests under the meaning of the Mental Capacity Act (MCA). Furthermore a person making a decision concerning a plan on behalf of a person who lacks capacity must consider whether it is possible to make a decision or a plan in a way that would be less restrictive of the person's rights and freedoms of action. Any restriction must be in the person's best interests and necessary to prevent harm to the person, and a proportionate response to the likelihood of the person suffering harm and the seriousness of that harm.'
The Council’s power to charge
- Local authorities have a power to charge for meeting needs under section 14 of the Care Act 2014. The charge may only cover the cost the local authority incurs in meeting the needs to which the charge applies.
- The power to charge is subject to a financial assessment of the individual's resources. Where an individual's financial resources are below the capital limit they can seek means-tested support from the local authority.
- Paragraph 8.42 of the Statutory Guidance provides that:
- 'Because a person who receives care and support outside a care home will need to pay their daily living costs such as rent, food and utilities, the charging rules must ensure they have enough money to meet these costs. After charging, a person must be left with the minimum income guarantee (MIG), as set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014.'
- Section 24 of the Care Act 2014 sets out various steps local authorities are required to take where they are required to meet (or decide to meet) an individual's needs. Those mandatory steps include preparing a care and support plan which includes the personal budget for the adult concerned.
- A personal budget sets out the cost to the local authority of meeting the adult's needs, the amount which the adult must pay towards that cost and the amount the local authority itself must pay. The personal budget must always be an amount sufficient to meet the person's care and support needs. The amount must include the cost to the local authority of meeting the person's needs which the local authority is under a duty to meet.
- As for an individual's personal budget, the process to establish the personal budget must be transparent so people are clear how their budget was calculated. The method used must be robust so people have confidence the personal budget allocation is correct and enough to meet their care and support needs (paragraph 11.4 of the Statutory Guidance).
- The personal budget should not assume 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 (paragraph 11.7 of the Statutory Guidance).
- The amount specified as the personal budget must be sufficient to meet the person's needs which the local authority is required (or has chosen) to meet (paragraph 11.24 of the Statutory Guidance). It must be the amount that is the cost to the local authority of meeting the person's needs. Establishing such cost requires consideration of local market intelligence and costs of local quality provision to ensure that the personal budget reflects local market conditions and that appropriate care that meets needs can be obtained for the amount specified in the budget.
- Where a person or third party makes a top-up payment in order to secure the care and support of their choice, where this costs more than the local authority would pay for such a type of care, the top-up payment does not form part of the personal budget since the budget must reflect the costs to the local authority of meeting the needs (paragraph 11.14 of the Statutory Guidance).
- It is important to have a consistent method for calculating personal budgets that provides an early indication of the appropriate amount to meet the identified needs to be used at the beginning of the planning process. 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 (paragraph 11.22 of the Statutory Guidance).
- The evidence I have seen shows Mr B raised concerns about the quality of the care provided by the first care agency on two occasions. The first was in November 2013 when the Council issued a reminder to the care agency for carers to check the food in the fridge. The second was in March 2014 when the Council agreed with Mr B to end the care package and seek another provider. At other times Mr B fed back to the Council he was happy with the care provided. The only other instances when Mr B raised concerns are for missed or short visits. On each occasion the Council checked the records and mainly identified no significant difference to agreed visits. The Council noted that where differences occurred Mr B’s mother had refused the visit. I am therefore satisfied the Council took action in response to each of Mr B’s concerns. As I am satisfied the Council took action on those occasions when Mr B raised concerns about the care provided I have no grounds to criticise it.
- Mr B says the Council failed to adequately cover the costs of his mother’s care from April 2014 onwards. For the period April 2014 to January 2015 I am satisfied the Council properly assessed Mr B’s mother. The Council’s assessments until January 2015 did not identify the need for 24-hour care. I know Mr B disputes those assessments. However, I am satisfied the Council carried out the assessments properly. I therefore have no grounds to criticise it before January 2015. I am also satisfied during that period the Council properly considered the disability related expenditure Mr B put forward. So, I have no grounds to criticise the Council before January 2015.
- The situation is different from January 2015 onwards. At that point Mr B argued his mother needed 24 hour care. That is what the Council’s assessment in February 2015 decided. Mr B said his mother wanted to remain in her own home. However, the Council decided it could provide suitable care to Mr B’s mother in a care home. The Council therefore awarded a budget to reflect the cost of a care home, rather than the 24 hour care at home which Mr B arranged. The Council agreed to pay £485 per week. The actual cost of care at home though was £998 per week. The Council’s financial assessment also required Mr B’s mother to contribute towards the cost the Council was prepared to pay. Mr B is concerned about the failure to pay an amount to reflect the cost of providing 24 hour care at home and asking his mother to pay a client contribution when the Council knew she already paid a significant amount towards the actual cost of care.
- As Mr B’s mother has Alzheimer’s the Council carried out a mental capacity assessment in February 2015. That assessment decided Mr B’s mother did not have capacity to make her own decisions. The Council should then have arranged a best interest meeting to consider what was in Mr B’s mother’s best interests. The Council did not do that until August 2015. I am concerned about that delay. Failure to carry out the best interest meeting promptly following the mental capacity assessment is fault.
- The best interest meeting in August 2015 decided there were three least restrictive options, as referred to in paragraph 18. I am concerned the Council decided following the best interest meeting to fund only an amount equivalent to a residential home placement. I do not consider that reflects the outcome of the best interests meeting. That meeting decided the chosen option to meet Mr B’s mother’s assessed eligible needs was through 24-hour one-to-one care in her own home. Only if that proved impossible and she could not live with her son was the Council to consider a care home placement. That decision was taken in Mr B’s mother’s best interests as she lacked capacity. The decision falls squarely within the spirit of the care regime which encourages people to remain in their own home and takes account of Mr B’s mother’s wish to remain at home. I would therefore have expected the Council to set a budget which reflected the cost of providing 24 hour care at home. I am concerned the Council instead set a personal budget for Mr B’s mother based on an amount it would pay if she were being cared for in a care home. Mr B’s mother is not being cared for in a care home. I therefore consider the Council at fault for setting a personal budget based on that amount.
- Arguably the Council’s decision to do that is setting an arbitrary ceiling which may have forced Mr B’s mother into a care home against her will. That is not in accordance with the Care Act or Statutory Guidance. I am not persuaded by the Council’s argument that it has not operated an arbitrary ceiling as it awarded an amount above the indicative amount created by the resource allocation system. The point here is the Council should have set a personal budget that was realistic and sufficient to allow Mr B’s mother to get care suitable to her needs. As the best interest meeting decided Mr B’s mother’s needs are best met by a 24-hour one-to-one live in carer the Council should have calculated the personal budget on that basis, rather than based on the cost of placing her in a care home. Failure to do that is fault.
- In reaching that view I recognise the Council is relying on paragraph 10.27 of the Statutory Guidance, referred to in paragraph 29. As the Council correctly points out, the Statutory Guidance allows the Council to consider the financial cost when deciding how much to pay to meet a person’s eligible needs. Cost can be a relevant factor in deciding between suitable alternative options for meeting needs. However, that does not mean choosing the cheapest option. Instead, the Council must choose the option which delivers the outcomes desired for the best value.
- As I said earlier, the best interests meeting decided one-to-one care in Mr B’s mother’s own home was the least restrictive option. That decision was taken as it would deliver the desired outcomes taking into account Mr B’s mother’s wishes and the wishes of her family. I have made clear the Statutory Guidance also says the personal budget should not assume people are forced to accept specific care options, such as moving into care homes, against their will. I therefore consider the personal budget should reflect the cost the Council would normally pay for the type of care being provided to Mr B’s mother (24 hour, one-to-one care at home) and that amount should be calculated having regard to local service provision. If Mr B’s mother chose a certain care at home package that was more expensive than the Council would usually pay for one-to-one care at home then a top up payment may be necessary to secure the care and support of choice. However, the Council has not considered the amount it could pay towards 24 hour at home care. Instead it has awarded an amount for an option which has not been identified as the preferred option for Mr B’s mother simply because it is cheaper. That is against the Statutory Guidance referred to in paragraph 37.
- I am also concerned the Council’s approach left Mr B’s mother living on far less than the minimum income guarantee I referred to in paragraph 33. Not only is Mr B’s mother having to contribute towards the cost of her care because the Council will only fund the care home cost she is also required to contribute towards the amount the Council will pay. That is unacceptable and it has placed Mr B’s mother in difficult financial circumstances. In reaching that view I am aware the Council has referred to the extra cost Mr B’s mother pays as a ‘top up’. However, as I have made clear in previous paragraphs, the Council should base its funding calculations on the cost of providing one-to-one care in Mr B’s mother’s own home. What Mr B’s mother is therefore contributing towards her care does not qualify as a top up. Only if the Council identifies a cheaper option for 24 hour one-to-one care at home than Mr B’s mother is currently paying and she continues to choose the current provision would the Council be able to consider the extra amount a top up.
- I am concerned the Council failed to recognise its approach in this case was not in accordance with the Statutory Guidance. That is despite the fact Mr B employed a legal adviser to argue his case. The legal adviser made similar points to those I have made about what the Statutory Guidance says when it wrote to the Council in March 2016. The Council therefore had an opportunity to put matters right at a far earlier stage and I am concerned it did not do so.
- Mr B says the Council should include in its financial calculations the extra costs his mother incurs because of having a live-in carer. Mr B says this has increased his mother’s expenditure on food and heating as well as other costs and the Council has refused to take that into account. The Council’s view is it cannot make an allowance for those costs because live-in carers require board and lodgings by HMRC which includes providing meals and heating. It says the Council would not expect the carer to cause extra heating costs unless they were living in a separate annexe.
- For the heating, lighting and food costs, I am satisfied the Council uses Government figures for establishing whether costs for specific items are above the national average. So, if the carer’s presence in the home results in extra costs which takes that over the limit set by the Government I am satisfied the Council will take that into account in the usual way when calculating disability related expenditure. I therefore have no grounds to criticise the Council here.
- Within one month of my decision the Council should
- apologise to Mr B;
- pay Mr B £500 to reflect the time and trouble he had to go to and the distress he experienced;
- pay £1,275 towards the legal fees Mr B incurred which reflects 50% of his legal costs;
- set a realistic personal budget sufficient to cover 24-hour care on a one-to-one basis in Mr B’s mother’s own home;
- calculate the difference between that figure and the amount the Council paid from January 2015 onwards and pay that amount to Mr B’s mother; and
- amend its procedure to ensure the Council does not routinely award an amount for care home provision when a best interest decision has been made which identifies at home provision as the least restrictive option.
- I have completed my investigation and found fault by the Council which caused an injustice to Mr B and Mr B’s mother. I am satisfied the action the Council will take is sufficient to remedy that injustice.
Investigator's decision on behalf of the Ombudsman