London Borough of Bromley at fault for failing to consider sufficiently if a care home could meet a person’s needs

Decision Date: 26th November 2010

What Happened

Mr X complained on behalf of his father, Mr B, who was from Gujarat. Mr B spoke Guajarati with only a limited amount of English, and was Jain, so in observance of his faith he followed a strict vegetarian diet with no eggs, onion, or garlic.

The Council assessed Mr B as needing residential care in January 2019.

The Council suggested he move to a nearby home, but Mr X found that no staff member could speak Guajarati and the home could not cater to Mr B’s dietary needs.

Instead, Mr X found Mr B an alternative home (home A), in an alternative borough, which had Guajarati speaking staff, social and religious events in that language, and could provide meals suitable for Jains. However, this home was more expensive.

The Council agreed to increase Mr B’s personal budget to around £200 per week more than it would usually pay. In an email to Mr X, the Council confirmed that it had “agreed to fund at the residential rate…at £637pw”. This still left a shortfall of nearly £240 per week.

Before Mr B moved into Home A, the Council wrote to him with information surrounding paying with his care, for example information about third party top-ups.

After Mr B moved, Mr X started to receive bills, and he realised he had misunderstood how the funding would work. He had thought that the Council would pay £637 and that Mr B could make up with shortfall using his pension. However, the Council’s figure already included Mr B’s contribution, so the further shortfall was for Mr X and the family to find.

The Council assessed Mr B’s income and decided he should pay £240 per week and that Mr X would still need to pay a top up of a further £240 per week. By this time Mr B had settled into the home and his family did not want to move him.

Mr X complained to the Council that he was told too late about the top up fees, and that the Council were unable to meet Mr B’s needs elsewhere.

The Council responded, stating it had sent him information about how the fee was broken down and a link to its guide before Mr B moved in. It said also that Mr B’s needs could have been met within the Council’s rate of £637 per week but Mr X had chosen a more expensive home, knowing that the family would have to pay a top-up fee.

What was found

The LGO found that the Council was at fault because it could not evidence that it investigated available homes sufficiently or offered a suitable place within Mr B’s personal budget.

Internal emails highlighted the Council had considered whether it was able to offer Mr B a choice of homes, but not sufficiently.

The emails confirmed the Council’s stance that it ‘expected’ all care homes to provide services to adults of various ethnic, cultural and religious backgrounds. However, this was not enough for the LGO. The Council had to actually be satisfied that the home it offered could actually provide the services within the personal budget.

Despite the misunderstanding, the LGO found no fault by the council in how it communicated with the family regarding the top-up fee. The relevant information was made available to Mr B, and the LGO considered the mistake to be genuine.

The LGO recommended that the Council take over payment of the third party top-up, pay Mr X the total of the top-up payments he has made to date, and investigate how other homes could meet Mr B’s language and religious needs within his personal budget. If the Council were unable to find an alternative home, it should continue to pay the top up-fees, if they were able, Mr B could move to the cheaper home or Mr X and his family could resume paying the fees.

Points for the public, service users, commissioners, families and care homes

The Care Act guidance requires councils to commission a good quality and diverse range of services.

A council cannot claim to have commissioned reasonably if there is no provision for ensuring that people’s religiously driven dietary requirements are met, within a fee rate, because it is a person’s human right to manifest their religious beliefs, within reasonable limits, in the context of affecting other people in the care home.

Councils, under the Care Act, and care homes providing for people’s needs to be met in care homes and providers providing for home care in the community, owe human rights directly to members of the public, if the service is funded publicly, including through a direct payment.

The Care Act makes that the law by the requirement that councils promote wellbeing and by the principle that the Guidance must be followed unless there is a very good reason not to.

One would not even be surprised if Ramadan or Kosher sensibilities were funded so as to be assured of observance, in council contracts with care homes seeking to provide an environment that was person-centred for people of Islamic or Jewish faiths. Whether that is done on a flat rate basis or on the basis of a person-centred NEED makes no difference: it just needs to be done for the care to be minimally appropriate.

The fact that a religion may be less well represented in an area may be a good reason for negotiating a spot contracted for extra fee for observing a specialist diet. This man though, was merely committed to being a vegetarian, with a particular disdain for eggs onions and garlic, which one would not see as unusual these days, now that ethical veganism has been regarded as a philosophical belief by at least one tribunal in 2020.

We think that the language point is even more important and goes to the essence of the capability and appropriateness of the proposed service, to meet the needs of the service user.

Whether the environment’s offering of Gujarat culture and Guajarati speakers actually ‘justified’ another £200 above the asserted normal rate for people of this man’s level of need is another matter, and we cannot know whether Bromley’s usual rate was an arbitrarily low one in the first place.

But that is all irrelevant in this specific context: if there is only one way to meet the assessed eligible needs, then it is not the family’s fault that the provider has had the commercial sense to charge more for providing a scarce resource. It was a NEED and not a want, we think a court would have said, had the matter gone to a court.

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The full Local Government Ombudsman report of London Borough of Bromley’s actions can be found here