The Ombudsman's final decision
Summary: There was fault by the Council as it did not refer the service user for a financial assessment when it first carried out a care and support assessment. The Council’s reduction of an invoice requiring the repayment of direct payments is a satisfactory remedy to this injustice. There is no fault in the Council’s decision making on the amount of direct payments.
The complaint
The complainant, who I shall call Mr X, complains for his mother in law, Mrs Y. Mr X complains the Council has not followed the main provisions of the Care Act, by not taking into account Mrs Y’s well-being and wish to remain at home. Mr X says the Council has not considered the cost of 24 hour a day care when calculating the financial contribution towards the direct payments.
Mr X complains the Council delayed carrying out a financial assessment which has resulted in a large overpayment of direct payments. Mr X says this has caused them a financial injustice as they need to repay the direct payments.
The Ombudsman’s role and powers
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) 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)
How I considered this complaint
I read the papers put in by Mr X and discussed the complaint with him.
I considered the Council’s comments about the complaint and any supporting documents it provided.
Mr X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17) Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their well-being and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning. It should confirm the final amount of the personal budget through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs.
There are three main ways 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; or as a direct payment.
(Care and Support Statutory Guidance 2014) Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.
The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
Key facts Mr X has LPA for property and finance and health and welfare for Mrs Y.
The Council carried out a care and support assessment of Mrs Y in June 2021 which said she needed 4 calls a day or 17.5 hours a week. Mr X disagreed with the assessment and says that Mrs Y needed 24 hour home care at this time. The Council said it could not source the care package due to lack of domiciliary carers in the area. The Council said there was fault in that the initial referral for a financial assessment in June 2021 was not received by the Council’s finance team.
The Council reassessed Mrs Y in September 2021 as needing 21 hours of support during the day in the week and five nights of support as her needs had increased.
Mr X’s family told the Council on 20 September 2021 they were running out of money to pay for Mrs X’s private care package. The Council said it could provide an urgent Direct Payment before the financial assessment was needed for the cost of the care it assessed Mrs Y as needing (21 hours a week and five overnights).
On 4 of October 2021 the Council set up the Direct Payment with Mr X. The Council said it told Mr X on the phone that ‘the agreed funding is subject to a financial assessment being carried out. Following the assessment, should Mrs Y be assessed as having to make a weekly contribution towards the cost of her care, Mr X should agree to make a backdated payment and to ensure that Mrs Y's assessed charge is paid into the direct payment bank account on an ongoing basis.’
The Council sought the financial assessment on 8 October 2021. On 12 November 2021 the Council wrote to Mr X to say the weekly assessed charge would be £880 per week. Mrs Y has an income of £1000 per week from pensions.
The Council set the Direct Payment up on 7 October 2021 and backdated it to 4 June 2021 at £722 per week. The Council’s letter to Mr X said ‘you are not currently required to make a service user contribution. This is subject to a financial assessment. If you have not heard from the financial assessments team within 28 days of this letter, please contact them as the Council will backdate charges to the start of the Direct Payment’.
The Council paid Mrs Y on 8 November £19092 which covered 4 June to 5 December 2021 and on 6 December it paid £2889 for 6 December 2021 to 2 January 2022.
In February 2022 a further assessment decided that Mrs Y needed 24 hour care in a dementia nursing home. The Council identified a placement which it said could meet Mrs Y’s needs at £692 per week. Mr X said he felt it was in Mrs Y’s best interest for her to remain at home for as long as possible. The Council said ‘its intention was for the Direct Payment of £692 to support this, however at this point Mrs Y was deemed to be self-funding because of the high service user contribution. The Council has not received any financial returns from Mr X.’
Mrs Y moved to a dementia nursing home in May 2022.
The Council said as Mrs Y’s financial contribution is higher than the cost of her assessed package of care the Council is requesting the backdated funds of £21,982 are paid back.
My analysis Financial assessment Mr X complains the Council delayed carrying out a financial assessment which has resulted in a large overpayment of direct payments.
From the information I cannot see evidence the delay in financial assessment led to the injustice Mr X claims.
The Council says that it was at fault, as it did not refer for a financial assessment, in June 2021. While there was fault, from the information I have seen this delay did not cause a financial injustice as Mrs Y paid privately for her care until Mr X contacted the Council in September 2021.
The Council set up the direct payment in October 2021. At this point the Council told Mr X there would be a financial assessment to decide how much Mrs Y would need to pay towards her care. The Council paid £19092 on 8 November. The Council told Mr X on 12 November 2021 they would need to pay up to £880 towards the weekly assessed charge. So, while I accept there was a large overpayment of direct payments to Mrs Y, the money had only been in her account for 4 days before they were made aware that they would need to contribute the full amount towards her care and so would need to repay the money.
The Council has said that as a gesture of goodwill it will reduce the debt owed by £2000, meaning the outstanding amount owing would be £19982. In the circumstances, I consider this is a generous remedy.
Direct payment amount Mr X complains the Council has not followed the main provisions of the Care Act, by not considering Mrs Y’s well-being and wish to remain at home. Mr X says the Council has not considered the cost of 24 hour a day care when calculating the financial contribution towards the direct payments.
The Council said ‘it creates care plans that acknowledge people’s views and wishes but take account of the need for us to meet eligible need in the most cost-effective way. This is a fine balance, and we need to consider on a case-by-case basis what is fair and affordable. When undertaking the support plan for Mrs Y we talked to Mr X about what he thought would be in Mrs Y’s best interest. We were clear with the family that we would not be able to meet their expectations for 24/7 care at home but what we would be able to provide was a Direct Payment for the amount it would cost us to meet Mrs Y’s needs. We deemed that we would be able to meet Mrs Y’s needs in relation to her health and well-being in a dementia nursing home and therefore offered a Direct Payment at this rate. The Direct Payment offered Mrs Y and her family choice and control as it would have allowed the family flexibility to top up to their preferred care and support package’.
The care assessment of February 2022 said that ‘Mrs Y needs 24 hour care support. This care would cost £2072 per week if family did not support. Mrs Y is financially assessed as having to contribute £880 per week towards her care. Mrs Y’s family have asked that the Council pay the full amount of the care minus the financially assessed contribution. Mrs Y has made is clear that she wishes to stay in her own home and her family, as decision makers, honour that. Mr X and other family have LPA to make decision on her care and support needs as Mrs Y has been assessed as lacking mental capacity to make these decisions’.
The report said the Council considered Mrs Y’s needs could be met in a nursing home which had an available place, so direct payments would be offered at the rate of a nursing home (£692 per week) which the family could use towards a private care package.
Section 10.27 of the care act guidance says ‘in deciding 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 deciding 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 choice; but the one which delivers the outcomes desired for the best value.’
Mr X complains the Council has not followed the main provisions of the Care Act, by not considering Mrs Y’s well-being and wish to remain at home. I do not find fault on this point. The Council has assessed Mrs Y as needing 24 hour care. It has considered Mrs Y’s wish to remain at home by offering Mrs Y a direct payment towards receiving care at home rather than a nursing home placement.
Mr X says the Council has not taken into account the cost of 24 hour a day care when calculating the financial contribution towards the direct payments. I do not find fault on this point. The care and support assessment clearly took into account of the cost of 24 hour care at home. However, the Council is entitled to include cost as a relevant factor in deciding between suitable options for meeting needs. In this case, it has determined that Mrs Y’s needs can be met in a nursing home which had an available place and so has set her personal budget at this cost.
Agreed Remedy The Council will send a new invoice to Mr X, reducing the amount owed by £2000, within one month of the date of the decision on this complaint.
Final decision
I have completed my investigation of this complaint. This complaint is upheld, as there was fault by the Council. The reduction of the amount owed is a satisfactory remedy to the injustice caused by the fault.
Investigator's decision on behalf of the Ombudsman