Summary: We did not uphold Mrs X’s complaint about a refusal to cover the full cost of live-in care for Mrs Y. We found the Council was entitled under case law and under Paragraph 10.27 of Care and Support Statutory Guidance to have regard to its finances. There was one example of misleading communication which was fault causing avoidable confusion. The Council will apologise and instruct relevant staff not to repeat this comment.

The complaint

1. Mrs X complained for her relative Mrs Y that London Borough of Bexley (the Council) failed to give a direct payment for Mrs Y’s care to enable her to pay for live-in care. She complained about:
1. The assessment of Mrs Y’s needs
2. The failure to hold a best interests meeting
3. The failure to provide a care and support plan or personal budget
4. Poor communication.
2. Mrs X said this caused her and her husband avoidable time and trouble and distress and concern about how to fund Mrs Y’s future care. It also meant a financial loss to Mrs Y.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. I have investigated from May 2021. Events before that date are late. Mrs Y could have complained to us about earlier events within 12 months. I have mentioned events in 2020 as background.
5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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)
6. 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)
7. 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

8. I considered the complaint correspondence and documents set out below. I discussed the complaint with Mrs X.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

10. The Care Act 2014 begins with the overarching duty on local authorities to promote a person’s well-being, when exercising functions under the Care Act. Well-being means:
• Personal dignity (including treatment with respect, physical and mental health and emotional well-being
• Protection from abuse and neglect
• Control over day-to-day life
• Participation in work, training, recreation or education
• Social and economic well-being
• Domestic, family and personal relationships
• Suitability of accommodation
• The person’s contribution to society. (Care Act 2014, section 1)
11. A council 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 outcomes they want to achieve. It must also involve the individual and where appropriate their carer or any other person they might want involved. (Care Act 2014, section 9)
12. The Care Act spells out the duty to meet eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18)
13. An adult’s needs meet the eligibility criteria if they arise from or are related to a physical or mental impairment or illness and as a result the adult cannot achieve two or more of the following outcomes and as a result there is or is likely to be a significant impact on well-being:
• Managing and maintaining nutrition
• Maintaining personal hygiene
• Managing toilet needs
• Being appropriately clothed
• Making use of the home safely
• Maintaining a habitable home environment
• Accessing work, training, education
• Making use of facilities or services in the community
• Carrying out caring responsibilities.

(Care and Support (Eligibility Criteria) Regulations 2014, Regulation 2)

14. The Care Act explains the different ways a council can meet eligible needs by giving examples of services including accommodation in a care home or other premises or care and support at home (Care Act 2014, section 8)
15. If a council decides a person is eligible for care, it should prepare a care and support plan which specifies the needs identified in the assessment, says whether and to what extent the needs meet the eligibility criteria and specifies the needs the council is going to meet and how this will be done. The council should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
16. The care and support plan must set out a personal budget. A personal budget is a statement which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. (Care Act 2014, section 26)
17. Statutory Guidance explains a council should review a care and support plan at least every year, on request or in response to a change in circumstances. The purpose of a review is to see how a care and support plan has been working and to decide if any revisions need to be made to it. (Care and Support Statutory Guidance, Paragraphs 13.19-21 and 13.32)
18. A council should revise a care and support plan where circumstances have changed in a way that affects the plan. Where there is a proposal to change how to meet eligible needs, a council should take all reasonable steps to reach agreement with the adult about how to meet those needs. (Care Act 2014, sections 27(4) and (5))
19. The Mental Capacity Act and Code of Practice to the Act sets out the principles for making decisions for adults who lack mental capacity. An assessment of a person’s mental capacity is required where their capacity is in doubt (Code of Practice paragraph 4.34)
20. The courts have confirmed a person’s wishes are not the same as their needs and wishes are not the paramount consideration. A council must have ‘due regard’ to an adult’s wishes as a starting point, but social workers are entitled to exercise their professional skills and judgement in deciding how to meet eligible needs. (R (Davey) v Oxfordshire County Council [2017] EWHC 354 (Admin))
21. Statutory Guidance says a council may take into account its budget and finances, including ensuring the funding available to it is enough to meet the needs of the whole local population. It may balance the requirement to meet an individual’s eligible needs with its overall budgetary responsibilities. It can take case by case decisions 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 options for meeting needs. (Care and Support Statutory Guidance, 10.27)
22. Direct payments are cash payments a council gives instead of commissioning or arranging a person’s care. They give an adult with care and support needs flexibility to make their own care arrangements.

What happened

Background

23. Mrs Y is in her late nineties, has dementia and lives in her own flat. She receives a direct payment from the Council. Mrs X arranges Mrs Y’s live-in care through a care agency and pays for this using the direct payment. The direct payment does not cover the full cost of live-in care and so Mrs X has been paying the difference using Mrs Y’s savings, which have almost run out.
24. Mrs Y’s assessment of need in November 2020 said she was eligible for social care funding. The paperwork noted she had been in hospital earlier in the year after two falls at home. As part of the discharge plan, it was agreed with Mrs X that Mrs Y would have a brief period of residential care before returning to her own flat with a live-in carer. Live-in care had been privately arranged and funded to date because Mrs Y had savings over the limit for council funding. The assessment noted Mrs Y’s savings were reducing and this was why the Council had become involved.

Chronology

25. A social worker completed a social care assessment in May 2021. Mrs Y’s views were recorded – she wanted to remain in her own home. The assessment noted Mrs Y had mental capacity to take part in the assessment and to make decisions about her care and support. She had live-in care which she had been funding privately. Her funds were depleting. The social worker suggested a cheaper agency which could provide live-in carers, Mrs X rejected this because the agency had a poor rating with the Care Quality Commission. The assessment noted Mrs Y was waking up in the night and needed carers to support her at night due to the high risk of falls. The social worker noted Mrs Y had been advised ‘Bexley don’t fund 24-hour care at home.’
26. A care and support plan dated June 2021 set out Mrs Y’s desired outcomes and goals and her eligible care and support needs, her personal budget and the direct payment the Council was providing (£785) which was the cost of the cheapest agency for live-in care in Bexley, backdated to April 2021.
27. An internal email in June 2021 between two managers indicates Mrs X and one of the managers had an on-line meeting to discuss Mrs Y’s care. The manager said in the email that Mrs X was of the view that Mrs Y’s emotional and psychological wellbeing had been compromised when she was in residential care temporarily (in 2020). The manager noted the stay in residential care in 2020 was not long enough to conclude this and there may have been issues because of the 14-day self-isolation period required at the time due to COVID-19. The manager emailed to say she had agreed an increase in Mrs Y’s direct payment to the cheapest agency rate for live-in care (£785).
28. A social worker completed a review of Mrs Y’s care and support plan in September 2021. No issues were identified. The direct payment was £785, backdated to April. The review noted Mrs X had contacted the agency which charged £785, but it had no staffing capacity for live-in care.
29. Mrs X emailed a manager at the end of December 2021. She said the agency the manager had recommended could not provide a live-in carer so they could not change agency. Mrs X asked if the Council could find another cheaper agency to provide live-in care. The manager replied saying there would be no increase to the funding and the view was Mrs Y’s needs could be met in residential care. The manager said she would ask the Council’s brokerage team to see if there were any other available options.
30. Mrs X complained to the Council in March 2022. She said the Council had assessed Mrs Y as needing 24-hour care in June 2021 and the family wanted it to increase the personal budget to cover funding for 24-hour live-in care and for the Council to find an agency.
31. A social worker reviewed Mrs Y’s care and support plan in April/ May 2022. The record of the review indicated Mrs X, Mrs Y, an advocate, the live-in carer and the social worker were present. I have summarised the key points below:
• Mrs Y’s priority was to remain in her home with support. Mrs X also wanted her mother to have live-in care and considered the risks of reducing this were unacceptably high.
• She remained eligible for care and support
• Mrs X’s contribution towards the cost of her care was £93 a week
• She had a direct payment for live-in care
• The social worker previously suggested another agency which was cheaper, but Mrs Y declined as the agency had a poor rating by the Care Quality Commission
• Mrs Y had not fallen in the past year, the social worker observed her responding to her Alexa device’s instruction to have a drink and a short walk. There was a camera monitoring her, linked to Mrs X’s phone. The carer’s daily records indicated Mrs Y got up at night to use the toilet and returned to bed with no assistance and she slept well. This was an improvement from the previous assessment.
• The recommendation was the direct payment could be used in a different way. The social worker’s view was Mrs Y did not need overnight care. She could use incontinence pads or a commode at night to reduce any risks and mat floor sensors could also be used.
• Care could be reduced gradually, kept under review with the end point being four care calls a day.
32. The Council’s response to the complaint in April 2022 said:
• It had agreed for Mrs Y to have a direct payment up to the cost of residential care to enable her to remain in her own environment. This showed the Council had respected her wish to remain at home.
• There had been a recent review. Mrs Y did not have needs requiring a care worker to be present at night. She could follow reminders on assistive technology, could move around the flat with her frame and was less confused than before. There had been no falls or near misses in the last year as noted by the agency’s records, so the risks had reduced.
• The direct payment of £644 in place at first was the same as the cost of residential care. The Council increased this in 2021 to £785 a week. It had done this taking into account COVID-19 and the local care rate agencies charged. She chose not to use the agency suggested because of the inspection rating.
• The Council did not have to increase the funding to enable Mrs Y’s needs to be met at home. It had to balance the available budget and make difficult decisions. This meant the budget reflected the cost to meet need in all settings including residential ones. She could optimise the available funding by using technology and more flexible care arrangements.
33. Mrs X was not happy with the Council’s response and complained to us in May.
34. Mrs X told us:
• She did not reject the cheaper agency, she questioned whether a council would expect a person to use an agency with a poor CQC inspection. She was told it would depend on the reason for the poor rating. She did not get an answer
• No-one gave her details of cheaper agencies
• When she tried to contact an agency the Council suggested, they could not provide a suitable carer for Mrs Y.
• The Council did not promote Mrs Y’s wellbeing and did not take account of other professional’s views (including the care home’s manager and another specialist worker known to Mrs Y) about the risk to Mrs Y of being without overnight care in her home

Findings

General

35. The Council is entitled to limit Mrs Y’s direct payment to the cost of residential care and there is no fault. This is because the Council’s duty is to meet Mrs Y’s eligible unmet needs, in line with Section 18 of the Care Act 2014. It does not have to meet Mrs Y’s preferences as the High Court confirmed in the Davey case (see paragraph 19). It is open to the Council to decide how to meet needs and it has discretion to choose between available options as set out in Section 8 of the Care Act 2014.
36. While this is a decision Mrs X does not agree with, the Council has had regard to paragraph 10.27 of Care and Support Statutory Guidance so there is no fault. The Council is entitled to take into account its social care budget as well as a person’s expressed preferences when allocating funding to an individual case. It is a matter for the Council to decide what weight to give each factor. We have no grounds to interfere with a discretionary decision like this, because it has been taken without fault.

The assessment of Mrs Y’s needs

37. The Council completed an assessment of Mrs Y’s social care needs in 2021 and determined she met the national eligibility criteria for social care and support. This was in line with Section 9 of the Care Act 2014 and there is no fault.
38. I am satisfied the Council actively considered Mrs Y’s well-being in line with the principles in Section 1 of the Care Act 2014. All the records note her wishes and preferences to stay at home and reflect her presentation during a temporary stay in residential care. However, the well-being principle does not mean there was a legal duty on the Council to fund her preferred care option. My view is that Mrs Y’s wellbeing was promoted by the Council’s decision to fund her care over and above the rate it would usually expect to pay for residential care.

The failure to hold a best interests’ meeting

39. Best interests’ meetings are only needed when a person lacks mental capacity to decide on their care and support. The social worker noted on the social care needs assessment that Mrs X had mental capacity to make decisions about her care and support. So there was no need to hold a best interests’ meeting.

The failure to provide a care and support plan or personal budget

40. The Council provided detailed care and support plans and reviewed and revised these periodically. It acted in line with sections 25 to 27 of the Care Act 2014. I accept Mrs Y does not share the professional view about the risk to Mrs Y if she does not have overnight care. However, my role is not to question the merits of decisions where there is no fault. Social workers are entitled to reach a view on the evidence of recent care notes, that Mrs Y has a lower risk of falling at night than previously and so to decide she does not need an overnight carer. The fact that a different professional had another view about over night care did not mean the social worker’s judgement was flawed.

Poor communication

41. Mrs X said officers did not respond to her questions about agencies working in the borough and their inspection ratings. I would expect Mrs X to have been able to identify agencies in the borough through internet research and their reports are all available on the Care Quality Commission’s website. So it was reasonable to expect her to have read the reports and so I do not find fault in any communication with her about this issue.
42. I am satisfied with the Council’s communication, apart from one comment which I discuss in the next paragraph. The records show a senior officer and Mrs X were in regular email contact, the complaint response addressed Mrs X’s complaint (although she does not accept the findings, I am satisfied the Council has provided a full response to her concerns) and she also attended meetings and had input into Mrs Y’s care and support plan reviews. Communication was appropriate in general.
43. I note Mrs Y’s social care needs assessment suggested the Council did not fund 24-hour live-in care. This statement was misleading which was fault and caused avoidable confusion. It was also factually inaccurate because the Council has discretion to fund live-in care and it was in fact doing so in Mrs Y’s case (although clearly this does not cover the whole cost).

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Agreed action

44. Within one month of my final decision, the Council will apologise for the avoidable confusion caused by the misleading statement that it did not fund live-in care. The Council will also advise social care staff not to make this statement about council policy, because live-in care is an option that is open to the Council and so a blanket policy of not funding live-in care could be seen as fettering discretion which we would regard as fault.

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Final decision

45. We did not uphold Mrs X’s complaint that the Council refused to cover the full cost of live-in care for Mrs Y because the Council is entitled under case law and under paragraph 10.27 of Care and Support Statutory Guidance to have regard to its finances. There was one example of misleading communication which caused avoidable confusion. The Council will apologise and instruct relevant staff not to repeat this comment.
46. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman