Summary: We upheld Ms X’s complaint about disability expenses for heating because the Council did not properly consider this by asking Ms X for additional evidence of expenditure. The Council will apologise and review the financial assessment. We did not uphold Ms X’s complaint that the Council refused to cover the full cost of live-in care. This is because the Council is entitled under case law and paragraph 10.27 of Care and Support Statutory Guidance to have regard to its finances.

The complaint

1. Ms X complained on behalf of her mother (Ms Y) about the charge for Ms Y’s care, which she said was not affordable. She also complained the Council capped Ms Y’s personal budget to the cost of a residential care placement when they wanted Ms Y to have live-in care.
2. Ms X says the Council’s fault has caused avoidable distress and a large debt.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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

5. I considered Ms X’s complaint to the Council and its responses and her complaint to us. I also considered documents from Ms X and the Council referred to in the next section of this statement.
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
7. Ms X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Relevant law and guidance

8. Councils must carry out an assessment for an 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 meet those needs and set out how it will meet them in a care and support plan (Care Act 2014, sections 9, 18 and 25)
9. 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)
10. The Council gives an indicative personal budget at the end of a social care assessment. This is an estimate of the cost of meeting the person’s assessed social care needs.
11. A council can meet eligible needs in different ways, including by providing accommodation in a care home or other premises or care and support at home. (Care Act 2014, section 8)
12. 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)
13. The Mental Capacity Act 2005 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)
14. An act or decision made for a person who lacks capacity must be done in their best interests. (Mental Capacity Act 2005, section 1(5))
15. The courts have confirmed a person’s wishes are not the same as their needs and wishes are not the overriding 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))
16. 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)
17. 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. A council makes direct payments to a person or their representative if it is satisfied the payment is an appropriate way to meet the adult’s needs (Care Act 2014, sections 31 and 32)
18. Care and Support Statutory Guidance (CSSG) is statutory guidance which councils should normally follow. CSSG says councils can charge people for care they provide and if there is a charge, this should follow national regulations on charging and carry out a financial assessment (FA). The regulations allow a council to take into account most types of income like pensions and benefits and savings. Some types of income are ‘disregarded’ or not included in the financial assessment and these are specified in regulations.
19. The Minimum Income Guarantee (MIG) is set by the government, usually goes up each year and is a weekly amount of money a person should be left with to pay for daily living expenses. A client contribution (care charge) must not reduce a person’s income below this protected amount. Additional allowances are made for disability expenses (see next paragraph), council tax and any housing costs.
20. Disability Related Expenditure (DRE) are expenses a person has to pay connected to their disability. They are an allowance in a person’s financial assessment which reduce their client contribution. DRE can include specialist items and services such as wheelchairs. They can include extra heating or laundry costs, equipment and aids and regular payments such as wheelchair insurance and gardening costs. A council must leave a person with enough money to pay for necessary DRE to meet needs that are not being met by the local authority. The care plan may be a starting point for considering DRE, but councils need to be flexible. (Care and Support Statutory Guidance Annex C, 39 and 41)
21. Councils commonly have a standard DRE allowance which they apply to everyone. In Cambridgeshire, this is £28. If people think their DRE is higher, they can ask for an individual assessment.
22. The Council’s charging policy allows people to ask for a review of their FA and if still not happy with the outcome of the review, they may complain. There is a further route to challenge an FA called a ‘waiver application’. Managers consider a further discretionary reduction of the contribution based on a person’s financial circumstances.

What happened

Background

23. Ms Y is in her late eighties, has dementia and lives in her own home with support from her family and home care arranged by the Council. In 2022, the care package consisted of four daily visits from care workers, which the Council commissioned with a care agency. In 2023, the Council added a direct payment (DP) of six hours a week to allow Ms X to arrange and purchase additional paid care from the care agency, so she could have a break from supporting Ms Y.
24. The complaint is about the family wanting DP funding for live-in care provided by the same care agency. The DP the Council agreed in 2024 does not cover the full cost of live-in care and so Ms X used Ms Y’s savings to fill the gap. Her savings ran out and so there are debts owed to the care agency. There is also a debt to the Council for unpaid care charges (also called ‘client contributions.’) Some of this debt pre-dates the complaint to the Council.
25. Ms Y has power of attorney for Ms X for property and affairs. This means she has legal authority to manage Ms X’s money and to pay her client contributions using Ms X’s income and savings.

Ms Y’s care charge (client contribution)

26. The Council wrote to Ms X in March 2023 about Ms Y’s financial assessment. Her weekly client contribution was £119.
27. Ms X contacted the finance team by phone in March, saying her mother had weekly expenses of £24 on pads, £16 a week on sheets, £260 a month on gas and £136 for heating. She was told to send in evidence of these expenses and the finance team would consider a claim for additional DRE.
28. Internal case notes indicate the finance team received the evidence of additional DRE from Ms X in May but did not process the request until August. The outcome was:
• Continence products were available free on the NHS and so were refused
• Gardening at £4.80 was approved
• Additional heating at £58 a week was not approved as there was no supporting evidence or explanation as to why this was required.

There was no change to Ms Y’s DRE because the amount allowed in the individual assessment was less than the standard amount. However, Ms Y’s income from benefits had increased with the yearly increase given by central government. The Council completed a further FA (in August) and advised Ms X of the increased contribution of £132 due to the increase in her benefits. It did not backdate the increase to April.

29. Ms X wrote to the Council at the end of August. She set out Ms X’s weekly outgoings (including additional care, utilities, TV, internet and phone, food, incontinence aids and taxi fares and said the client contribution was not affordable. She said she did not accept the revised FA.
30. The Council wrote to Ms X at the end of September saying it had agreed the cost of Ms Y’s lifeline (£5) as a DRE, but this did not change her client contribution as her total DRE didn’t exceed the standard £28 allowance.
31. Ms X asked the Council to review the FA again. She provided a breakdown of Ms Y’s expenses which included food, pet costs, continence aids, private care, additional heating (due to Ms Y’s dementia and poor insulation, there were high heating costs) and gardening at a weekly total of £209. Senior managers considered this as a waiver request (see paragraph 21). The Council told Ms X most of these expenses were daily living costs and the MIG needed to cover them and Ms Y’s MIG was more than £209.
32. Ms X emailed the finance team in January 2024 saying her mother’s condition had declined and she and her brother were staying with her all the time.

Capping Ms Y’s personal budget

33. In January 2024, a social worker assessed Ms Y’s mental capacity and decided she lacked capacity to decide on where her care needs should be met. The social worker completed a best interests decision. This recorded the family’s and Ms Y’s wishes, set out the options (care home or live-in care) and weighed up the advantages and advantages of each option. The outcome was it was in Ms Y’s best interests to remain at home with care.
34. A social worker completed a social care assessment in February 2024. The assessment noted:
• Ms Y lacked mental capacity to make decisions about her care
• Ms Y was currently receiving four calls a day with two carers. The Council commissioned this care with a care agency. There was also a direct payment to pay for six hours a week for a sitting service to enable her informal carer (Ms X) to have a break
• There was a debt of just under £7000 for unpaid client contributions dating back to April 2023.
• Ms X told the social worker she had been arranging additional care privately and there was debt of £8000 to £10,000 for this.
35. The outcome of the assessment was Ms Y was eligible for care and support. Ms Y now had ‘24-hour care and support needs.’ The indicative (estimated) PB was £712 a week.
36. Ms Y’s care and support plan of April 2024 set out her eligible needs and outcomes and her PB. It went on to say:
• The Council would provide a DP equal to the cost of a dementia care home. This was to be used to cover the cost of home care towards meeting Ms Y’s 24-hour care and support needs.
• It was unlikely the DP would be enough to cover all Ms Y’s needs. Ms X or another family member would need to cover the shortfall. If this was unsustainable, the Council would need to consider how Ms Y’s needs could be met.
37. The social worker carried out a review of the care and support plan in June 2024. The record of the review said:
• Ms Y was receiving a mix of paid care through an agency and unpaid care from Ms X. It did not say how many hours were paid care.
• The family had arranged some private care with the same agency and there was a debt in relation to this and payments were being made
• There was also a debt related to unpaid client contributions. The review said Ms X was applying for equity release on Ms Y’s home and this would release funds to pay for additional care.
38. Ms X and the social worker spoke in July 2024. Ms X told the social worker the family had decided to try live-in care with the agency at a weekly cost of £1100. Ms X said she thought the family could afford the top-up. The care agency confirmed Ms X had arranged for the agency to provide live-in care in July 2024.
39. There was a further discussion between the social worker and Ms X about the family considering equity release as a way of paying the additional cost of Ms Y’s live-in care (a way of releasing cash from the home by a mortgage)

The complaint to the Council and its responses

40. Ms X complained to the Council in March 2024. The Council’s first response in May said:
• The Council had applied the Care Act 2014 when calculating Ms Y’s client contribution. Her total income was £403.
• The allowances applied to her were £214 MIG, DRE of £28 and council tax of £29. This was £271. The client contribution was the difference between the two amounts: £403 less £271 = £132.
• She applied for a waiver, but the information given showed once the client contribution and all other listed outgoings had been deducted, she had £7 remaining.
• The Heads of Service considered the waiver request. They concluded:
1. Continence aids were free on the NHS
2. TV and telephone costs claimed were not the most economical options
3. There should be no need for private care as Ms Y was getting a direct payment.
• The Council wouldn’t cancel the debt.
41. In June Ms X said she wasn’t happy with the Council’s first response. Ms X said there was a large debt to the care company which was allowing her to repay gradually. She said she had halved Ms Y’s paid care. She said her brother slept overnight at Ms Y’s and she (Ms X) worked from her home every day as Ms Y could not be left alone.
42. The Council’s second response to the complaint in August said:
• Ms Y’s MIG was £214 a week. The living expenses Ms X claimed for (including heating) were £209.
• Ms Y’s total income was £410 a week, after subtracting the MIG, pension savings credit, council tax and £28 for DRE this left £132 which is her care contribution
• The only DRE not accepted was continence aids. These were available on the NHS
• A social worker completed a social care assessment in February 2024. The outcome was Ms Y needed 24-hour care. The family wanted Ms Y to stay at home so the Council provided a direct payment at the equivalent cost of a dementia care home.
• At the care review in June, Ms Y said they were trialling live-in care at £1100
• Ms X told the social worker the family could afford the difference and this was sustainable
• The Council had to take into account the most cost-effective way to meet needs, which is often through a care placement.
43. In response to my enquiries, the Council said it accepted it had not properly considered the request for additional heating expenses to be treated as a DRE because it could have followed up the evidence to support Ms X’s request. The Council offered to contact Ms X, apologise and seek additional evidence from her and to review the heating request and recalculate Ms Y’s client contribution if it decided she had additional DREs.

Was there fault and if so, did it cause injustice?

The financial assessment

44. There is fault in the Council’s financial assessment. It accepted it did not properly consider additional DRE allowance for heating by following up on its request for additional evidence. This was not in line with Annex C of Care and Support Statutory Guidance. The injustice is uncertainty about whether Ms Y’s client contribution is correct or may be too high.
45. Otherwise, there is no fault in the financial assessment process. The Council has assessed and reviewed Ms Y’s finances and taken into account individual items requested for DRE. It is entitled to refuse items as daily living expenses (like pet costs and food) because they are not connected to Ms Y’s disability or to decide not to award as DRE items which can be obtained free of charge (like continence aids). It is also entitled to decide that individual items claimed for are too high in comparison with similar goods and services.

Capping the personal budget

46. As a council must meet a person’s eligible unmet needs, we would usually expect it to have evidence that it offered a placement in a dementia care home to Ms Y at the time it reviewed her care needs and decided she required 24-hour care. In this case there is no evidence the Council offered the family a care home placement. I do not consider it to be fault though, because the best interests decision paperwork indicates the family who hold power of attorney had decided Ms Y would have live-in care and so the placement option had been considered and rejected by the family. There would be little point in officers securing a care home placement which would be rejected.
47. The Council is entitled to limit Mrs Y’s direct payment to the cost of residential care. 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 a family’s preferences as the High Court confirmed in the Davey case. 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.
48. 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 and the court has confirmed that a person’s wishes are not the overriding factor. We have no grounds to interfere in the absence of fault. I recognise there are debts due to the care agency for additional care and to the Council for unpaid client contributions, but I have found no fault in the decision-making process and so there are no grounds for me to recommend any action for the Council on this part of Ms X’s complaint.

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Agreed action

49. The aim of a remedy, when we find fault and injustice, is to try and put the person affected back into the position they would have been in if there had been no fault.
50. The Council will within one month of my final decision:
• Apologise to Ms X for the avoidable uncertainty caused by the fault in the DRE assessment. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Review the request for an additional DRE allowance for heating, giving Ms X the opportunity to provide relevant supporting evidence. If any extra DRE is awarded, the Council should recalculate Ms Y’s client contribution, backdate any reduction in the contribution to May 2023, adjusting outstanding client contribution invoices accordingly.
51. The Council should provide us with evidence it has complied with the above actions.

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Final decision

52. We upheld Ms X’s complaint about disability expenses for heating in her mother Ms Y’s financial assessment for care charges. The Council will apologise and review Ms Y’s financial assessment. We did not uphold Ms X’s complaint that the Council refused to cover the full cost of live-in care for Ms Y. This is 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.
53. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman