Summary: Mrs X complains about how the Council arranged social care funding for her mother Mrs Y. She said the personal budget was insufficient to meet her care and support needs. The Council was not at fault.

The complaint

1. Mrs X complained about how the Council arranged social care funding for her mother Mrs Y. Mrs X says the Council acknowledged Mrs Y wished to remain in her own home, but the personal budget was insufficient to pay for her assessed 24 hour care and support needs. Because of this, Mrs X provided care for Mrs Y to cover the hours not being provided by carers. Mrs X would like an increase in care hours for her mother to 24 hour care.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 the information supplied by Mrs X and discussed the complaint with her by telephone.
5. I considered the Council response to my enquiries and the relevant law and guidance.
6. Mrs X and the Council had an opportunity to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

The law and legal guidance related to the provision of care and support

7. 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

8. 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.
9. The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan (or a support plan for a carer). 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

10. 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.
11. Councils must consider 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. There are three main ways in which 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;
• as a direct payment.

Direct payments

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

Discharge to assess pathway

14. From 19 March 2020, there was a requirement to free up hospital beds for the anticipated wave of COVID-19 admissions. Government guidance at that time directed rapid discharge of all patients who were clinically ready to leave hospital, either home or to another place of care.
15. Where patients were discharged under this government guidance the NHS fully funded the cost of new or extended out-of-hospital health and social care packages. The Government later amended the guidance to limit the funding of support to six-weeks.

What happened

16. Mrs Y has long term health conditions. During 2020 Mrs Y’s needs increased due to a stroke. Mrs Y was at risk of falls, unintentional self-neglect and she has a sensory impairment. Following a hospital stay, the Council provided Mrs Y with 24 hour care at home, funded through the discharge to assess pathway. This support remained in place until June 2021.
17. In early October 2020 the Council assessed Mrs Y as needing:
• 24-hour care;
• 1:1 support; and
• help with maintaining her home, paperwork and finances, preparing and eating meals, getting dressed and all personal care needs.

It calculated an indicative budget of £916.25 per week based on her needs.

18. The October 2020 needs assessment said Mrs Y’s needs could be fully met in a residential setting but it noted Mrs Y was happy and settled in her own home and she did not want to live in a care home.
19. In mid-November 2020 an NHS Continuing Healthcare (CHC) assessor completed a CHC Assessment (an assessment of eligibility for NHS funding where an individual has a primary health need) for Mrs Y. They concluded Mrs Y was not eligible for CHC funding as she did not have a primary health need.
20. In early March 2021 the Council carried out a financial assessment for Mrs Y. The Council assessed Mrs Y as not needing to contribute towards the cost of her care.
21. In mid-May 2021 the Council agreed with Mrs X to provide Mrs Y with a direct payment of £1200 a week. It assessed this would be sufficient to meet the cost of live in carers.
22. In mid-June 2021 a private live-in care agency started to care for Mrs Y. Mrs Y’s personal budget fully covered the cost of the live-in care agency, which was paid for through the direct payment.
23. The live-in care agency ceased to provide care to Mrs Y in late December 2021 due to staff welfare and health and safety concerns.
24. As a temporary measure in early 2022 the Council arranged and funded emergency support for Mrs Y, to ensure Mrs Y’s ongoing safety. This cost significantly more than Mrs Y’s agreed personal budget. The Council also looked again at residential care home options as it considered this would fully meet Mrs Y’s needs within her £1200 personal weekly budget.
25. In February 2022 the Council met with Mrs X to agree a plan for Mrs Y’s support. The agreed plan was for Mrs Y to receive mixed provision of a home care agency and directly employed personal assistant. The Council advised it would not pay more than £1200 a week.
26. In early March 2022 Mrs Y’s most recent care and support plan was produced. It said Mrs Y:
• needed support with making decisions;
• needed 24 hour care;
• will not move into a care home;
• had a total weekly personal budget of £1200;
• had help from Mrs X to organised direct payments;
• currently received care through a mixture of provision including care by Mrs X and care from personal assistants which was paid through a third party managed direct payments via a Council managed budget.
27. In March 2022 the Council carried out Mrs X’s carer’s assessment, it said Mrs X:
• had her own health concerns and her physical health was declining;
• was still willing to help Mrs Y because she did not want her to go into a care home;
• provided 60-80 hours of care to Mrs Y a per week which include 3-4 hours per day and 3 nights per week; and
• the amount of care she provided to Mrs Y was impacting on her mental, emotional and physical health.

It provided her with a one-off carer payment of £545.

28. In early April 2022 the Council increased Mrs Y’s personal budget to £1224 per week in line with the annual uplift applied to residential care placements.
29. In mid-April 2022 the Council assessed Mrs Y as not having mental capacity to decide on her care and support needs and risks. The Council recommended Mrs Y received 24 hour care and the Council offered Mrs Y the option of a care home but Mrs Y and Mrs X declined. The assessment recorded the Council agreed to provide direct payments and for the family to provide informal care. It stated the Council was ‘in agreement with [Mrs Y] remaining at home if the provision of 24 hour can be maintained via the use of a direct payment and family input’.
30. Since mid-May 2022 the direct payment was used entirely to employ three personal assistants. Mrs X has also continued to provide care to Mrs Y.

Complaint

31. In early February 2022 Mrs X told the Council that Mrs Y’s personal budget did not cover the cost of Mrs Y’s care. The Council said she should raise her issues with Mrs Y’s social worker, which Mrs X did. The social worker said Mrs X should raise a formal complaint to the Council.
32. Mrs X complained:
• Mrs Y’s care package was not enough to meet her needs;
• she was worried about threats she received about being taken to court and Mrs Y being put into a care home;
• she was treated less fairly than others; her views had been misrepresented; and
• she wanted Mrs Y to receive 24 hour care, as agreed by the Council.
33. In March 2022 the Council responded to Mrs X’s complaint. It said:
• the Council had assessed Mrs Y as needing 24 hour care to meet her needs;
• a personal budget was generated which is the amount of money needed to meet the costs of her care needs;
• the budget was enough to meet her needs in a care home placement but not through home care;
• it believed Mrs Y lacked capacity to decide on her care and support needs;
• the family had decided to use a mixture of direct payments and family support to provide 24 hour care at home;
• it believed Mrs Y’s care needs would be best met in a residential care home and it could fund this through Mrs Y’s personal budget;
• it did not believe Mrs X had received any court threats but the Council had a duty to meet Mrs Y’s needs. It would insist on a care home placement if the family could not provide the extra support and would seek court guidance on next steps; and
• it did not believe Mrs Y was treated more unfairly than others and had a social worker for 18 months to explore and support Mrs Y with her care choices.
34. Mrs X remained unhappy and brought the complaint to the Ombudsman.

My findings

35. The statutory guidance says the personal budget must cover the cost of meeting the person’s needs and should be based on the cost of local quality provision.
36. The Council carried out the relevant needs assessment, care and support plan, carers assessment and mental capacity assessment. The Council established Mrs Y needed 24 hour care. The Council calculated an indicative budget of £916.25 per week and the Council was satisfied a weekly budget of £1200 was sufficient to meet Mrs Y’s needs.
37. Mrs X originally used the personal budget to pay for 24 hour live in care and the budget was sufficient to pay for this. When the arrangement broke down the Council acted appropriately and sought additional support for Mrs Y to ensure her safety, on a temporary basis. However, this cost significantly more than Mrs Y’s personal budget. The Council was not at fault for reviewing Mrs Y’s care plan to determine how her needs could be met within the allocated budget.
38. The Council was satisfied it could meet Mrs Y’s care needs in a residential care home and it could fund this through Mrs Y’s personal budget. However, Mrs Y and Mrs X decided to use a mixture of direct payments and family support to provide 24 hour care at home.
39. The Council can consider the cost of different care options when allocating personal budgets. Case law also supports councils being allowed to limit budgets based on meeting needs not preferences. The Council explained the available options and took into account Mrs X and Mrs Y’s views. There was no fault in the way the Council assessed Mrs Y’s needs or determined the personal budget.

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Final decision

40. I have completed my investigation finding no fault with the Council.

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Investigator's decision on behalf of the Ombudsman