Decision Date: 14th September 2020
Ms X complained on behalf of her relative, Ms Y.
Ms Y was a working age adult with long term health conditions.
Ms Y lived in her own house but received care at home (arranged by the Council). Ms X visited daily and helped to provide some care.
Ms X had been given power of attorney over Ms Y’s welfare and finances as Ms Y had envisaged lacking capacity.
In 2016 it was evident that Ms Y’s needs were increasing. After a hospital stay, Ms X, Ms Y and the Council all agreed that the only way to meet Ms Y’s needs would be in a care home.
Whilst the Council tried to arranged appropriate residential care, Ms Y was discharged home with a home care package which cost £1061.76 per week.
After receiving the homecare package for a time, Ms X and Ms Y changed their view about residential care. They thought that the home care package in place was the best way to meet Ms Y’s needs, and Ms Y now wanted to stay in her own home.
The Council reviewed Ms Y’s needs (at an undisclosed date) which concluded that Ms Y’s needs required 24-hour care 7 days a week to ensure her safety and wellbeing (she had an unacceptably high risk level for falls).
The Council acknowledged Ms X and Ms Y’s preference for home care and accepted it would be the least restrictive option (an aspect to which regard should be had in promoting wellbeing in s1 of the Care Act)
The Council set out the costs:
- Residential care for a young person was £850 to £1600 per week
- A local care home said it could provide care for £890 a week.
- The cost of live-in care was said to be £864 a week, for those with low needs, £977 for those with medium needs, £1090 for those with high needs
In February 2017, the Council set Ms Y’s budget as £823 per week for home care, which would be made via direct payment to Ms X. It is not explained how that was calculated, in the report.
Ms Y’s care plan stated that its aim was to ‘provide support to remain at home’; however under each of the sections setting out her eligible needs it said, ‘this need will be met through 24-hour care in a residential care home’, which was not the case at all, given the discussions. It also set out ‘the need is met through a POC (package of care)’.
In May 2017 Ms X told the Council that Ms Y’s personal budget did not cover the cost of her care.
The Council said that the budget could not be increased as it was ‘the maximum personal budget for 24-hour live-in care for someone under 65 years’, and suggested she contact a provider known to manage 24 hour care packages to sort something out within budget.
During a review by the care manager in July 2017 Ms X again highlighted that the budget did not cover the cost of care, and that she felt the pressure to provide additional care for Ms Y.
Ms X provided evidence from numerous care providers that actual costs were around £950 to £1300 a week to highlight that Ms Y’s budget did not meet her needs in terms of average rates in their locality. However, a review panel did not support this proposed increase in budget, stating that there was ‘not enough evidence of an increase of needs’.
A year later in April 2018, a review highlighted that Ms Y’s friends and family were providing care to fill the gaps. Again the Council did not increase the personal budget.
Another year later, in January 2019, another review was undertaken. Again, Ms X highlighted that the budget was not enough. Again, Ms X, Ms Y and the care home manager agreed that Ms Y should continue to receive care at home.
Ms X ended up complaining to the Council:
- Ms Y’s personal budget was not enough to meet her needs and she had been telling the Council this for two years.
- The direct payments funded two carers, one overnight seven days a week and one for five days a week – the personal budget did not cover the costs of weekend care and Ms Y had had no option but to fund this herself at a cost of £440 per month.
- The budget was also not sufficient to cover the cost of carers’ holiday pay, sick pay or required taxes.
- She asked the Council to review and increase the budget so she could employ enough carers to meet Ms Y’s needs.
The case was send to a funding panel, and the care manager provided a list of cost comparisons as at that point:
- Cost of an available local care home – £1050 per week;
- Direct payments for daytime and a managed service for night-time care – £2078.93 per week;
- Direct payments for 24-hour care – £2352 per week; (this would have covered at least two carers, probably 3 on shift, it is thought)
- Cost of a fully managed service – gave a comparison figure of £1016.09 per week for a service user who had a significantly lower level of night-time need than Ms Y (so this was not an adequate comparator for the actual level of need)
- It provided no comparison for the costs of care on a live-in care model, which it had agreed was the least restrictive option when it assessed Ms X’s needs in 2017, although it had not been what was wanted at that time.
The panel increased Ms Y’s personal budget to £1050 per week, the equivalent to the cost of residential care costs at this later point, even though there was no statement of intent to put her in a care home at that point.
The Council replied to Ms X’s complaint. Amongst other things, it highlighted that the April 2018 review concluded that Ms Y’s needs were actually being met by the DP and family members.
Ms X remained unhappy and complained to the LGO. She said she was only providing support because the personal budget did not meet Ms Y’s needs. Ms Y had been paying £110 per week to fill the gaps of care, and Ms X had no choice but to provide extra care herself, because of the Council’s ongoing refusal to set a realistic budget.
In response to LGO enquiries, the Council said that Ms Y received the ‘maximum’ personal budget, and that it was sufficient to meet her assessed needs.
It said that the decision to pay for extra support was Ms X’s.
It highlighted that Ms Y and Ms X had both originally agreed that a care home would be best for Ms Y, so if Ms X wanted to give up her caring role, the most economical way to meet Ms Y’s needs would be in a care home.
The Council said it was able to cap DPs and that Ms Y’s direct payment had been capped at the level of residential care that could meet her needs.
What was found
Statutory guidance states that a personal budget must (rationally) cover the cost of meeting a person’s needs and should be (rationally) based on the cost of local quality provision.
Councils can consider the cost of different care options when allocating personal budgets – see paragraph 10.27 of the Guidance.
Case law going back to the 1990s also supports Councils being allowed to limit budgets based on meeting needs, not preferences, as long as the comparisons are all adequate responses to needs in terms of professional judgment in the first place.
However, Ms Y’s care and support plan failed to set out how her needs could be met through 24 hour OR even by live in care, within the budget allocated. This was fault. Ms Y’s personal budget was insufficient to pay for the care based on the costs provided in the care plan. Even if it was based on the lowest level of need, the budget would have been £40 short a week of the £1090 costing obtained a long time ago for live-in care.
The Council told Ms X that the budget could not be increased, as it was the maximum budget allowed for a working age adult at home with 24-hour care. However, the Guidance is clear that Councils should not set arbitrary upper limits for personal budgets. This was fault.
There was a lack of detail in the care and support plan setting out how Ms Y’s needs would be met by 24-hour live-in care based on the budget available. This was fault. This meant that it was unclear to the panel why the budget was not accepted to be actually meeting Ms Y’s needs which then resulted in missed opportunities to review and alter Ms Y’s budget to meet her needs.
When the Council did review Ms Y’s personal budget in 2019, it used the care home comparison rather than the live-in care costs to set the budget. This was fault.
Ms X had been complaining about the insufficient budget since 2017 and the Council repeatedly said it would not increase it.
As a result, Ms X had to provide care herself and Ms Y covered the gaps in costs. Ms X was also caused distress and time and trouble taking the complaint to the LGO.
The LGO emphasised that personal budgets must reflect the cost of meeting a person’s needs, and that Councils cannot have arbitrary ceiling for personal budgets. Given that the woman was realistic about care home provision, the Council could have regarded that as not obviously Inappropriate as a response to eligible needs, and used care home pricing information when setting the personal budget, but only if it could show how the budget would meet the needs in the actual setting in which it was going to be deployed. It failed to do so, which was fault.
The LGO concluded that between February 2017 and March 2019, the budget was not enough to meet Ms Y’s needs as assessed and set out in her care and support plan. Ms Y had been forced to use her own money to pay for additional care and support at weekends. The LGO calculated that Ms Y received around £40 a week less than she should have for 26 months (based on the cost of live-in care as a way that would have met her needs in a way that was similar to the service profile for which the money had actually been used).
The LGO recommended:
- The Council pay Ms Y £4500 to make up the shortfall in funding, and to acknowledge the time and trouble she was put to.
- Apologise to Ms X and pay her £500 to acknowledge the strain she was put under
- Review Ms Y’s care plan to clearly set out how her needs could be met within a budget.
Points for the public, advocates, services users, lawyers, carers, managers and complaints staff (in CCGs as well as councils!)
This is a shocking case of legal illiteracy, in view of decided case law, on the part of Bromley’s senior management, it has to be said.
The LGO said that the council had not addressed the proper calculation process for identifying a sufficient personal budget, because it hadn’t set out in the budget or plan, HOW the money was going to be able to meet the needs, and therefore it hadn’t got an evidence basis or rationally set about ensuring that the budget was sufficient to cover those real costs.
Instead, they’d consistently offered an alternative sum, based on what other methods could achieve, even though some of them were not accepted as even feasibly affordable by the council, and some were not accepted as adequate, or appropriate, by either side.
The rate set eventually was a care home rate – the woman had made it clear that that was not her preference, but she was not implacably opposed to the idea, nor of the view that it would not ever be conceivably appropriately meet her needs. Very few people have needs that CANNOT be met in a care home, therapeutically appropriately; nor do many have needs that no care home will at least try to meet. So that was not an irrelevant consideration. However, it then went on to set the budget at that rate whilst saying it was the client’s choice not to spend it that way. In fact, it was the council’s choice not to walk away on the footing that the woman was refusing a lawful offer of care, and that is why the LGSCO is right to say it was still bound to meet needs in the real world, lawfully.
The LGSCO then hinted that if the council had paid £40 a week more, ie the rate it had established some years earlier as able to pay for live in care, it would have been good enough.
The woman had not had live in care, and by this time, may or may not have changed her mind but we can’t tell from the report. The point is that even if she had not, the budget awarded was short of even THAT rate, and that rate would not have been the same, so much later on as in 2017. So the rate being put forwards as ‘sufficient’ was not one that anyone could have got the necessary profile of care FOR, even with a live in model of care, rather than hours bought on shifts.
It was thus a fantasy rate – arbitrary, in terms of legal language – without any evidence basis as to it being conceivably enough.
We think that the LGO was right, on arbitrariness and sufficiency, but not fully right, in hinting that paying £40 more would have sufficed. The rate that was being used as a bench mark was from years previously.
Secondly that rate was simply mentioned in the report without anyone bothering to explain that councils don’t actually BUY live-in care: they don’t employ individuals to live in people’s houses.
When they need more than about 11-13 hours of care needs to be met within a 24 hr period, they pay an agency or a direct employer’s rate for a rota of three carers being on shift – and one of those workers might be a ‘real’ live in carer, or one of the three might at any time be called a live in worker on the agency’s accounts, for saving money on the night time shift, because they will generally be sleeping and not awake. But they do not live there – they have homes of their own, elsewhere. So the cost to the local authority is not ever going to be the same as the cost to an individual of employing 2 live in carers, to cover a genuine need for access to help, 24 hours a day. An individual will have to find an employee, or two employees to rotate shifts and the accommodation overnight, and most introductions agencies who even help in that regard charge an ongoing weekly commission!
Lastly, we think that in actual fact, the real legal principle lurking under the layers of ambiguity here is this, which the LGSCO did not engage with: councils can only take the cheaper of two alternative adequate means of meeting a need for ‘capping’ or finalising their offer in another setting which the client is said to be ‘preferring’ or ‘choosing’, when the content of the notional ‘alternative’ package that’s been priced up as cheaper is one that is actually in the gift of the council – ie one that they can provide or contract for, without needing special favours from the person in question, such as
- moving house to a different tenancy where the client has to pay rent but the care will be cheaper,
- or letting a person in to live with them in their own personal private space,
- or being a direct employer so as to avoid the corporate overhead and profit element in a fee to a company
- or accepting personal care from a spouse, even if the spouse is willing
- or accepting ‘shared’ care, by agreement, through a s25(11) Care Act agreement to do just that, thereby removing the risk from the council for failure to meet all the individuals’ needs, as individuals, with compliant s26 budgets which cover all of each of their separately assessed needs.
A person may not want to move house, in fact, and they can’t be made to – see the Perry Clarke case from 2015: they have Care Act rights already, without moving.
They may have the room spare, but not want to have someone live with them, or baulk at the thought of having an actual employee, or be dead set on not turning their relationship into one where their spouse becomes their carer.
And as to the last instance at e), a person with a learning disability in supported living may not have had the first clue that their budget has been reduced by dint of an assumed agreement to put up with shared care – as the price of getting OUT of an ATU or care home, usually, in to what is naively accepted by people’s relatives as a ‘Forever Home’ where all will be perfect, and who assume that THEY have power to agree, in a person’s best interests.
But that is letting a council off of a statutory duty, which is only something that a welfare power of attorney holder or deputy can possibly have the authority to do. It is telling that there is no reference at all in s25(11) to how this sharing might even BE agreed, for people lacking in capacity to risk manage for themselves and absolve the authority of some form of responsibility in some sort of cause of action or regulatory forum or court or enquiry, should harm actually ensue from the sharing meaning that there’s not enough staff to go around in an emergency.
In fact, in most instances of supported living, the clients’ enhanced benefits will be taken, instead, by way of social care charges, and not even available to spend on activities that ARE a choice, instead of an imposition. And the care provider will have guaranteed the voids and HB deficits to the landlord, in return for nominations to the house, ensuring that the separation between tenure and care arrangements collapses, although CQC does nothing about that. Clients will be persuaded against direct payments, even though that possibility could in fact be delivered through Authorised Persons, who might also be regarded as having the power to ‘agree’ to share.
So much for personalisation, autonomy and control, in the face of commercial interests and austerity!
Therefore, in all those cases we’ve identified, the adequate cost-effective ‘solution’ being priced up is not really ‘available’ to the council as part and parcel of its Care Act deployment and implementation powers, and hence not actually able to be compared or put on the table as if it was lawful. And all for good legal reasons, assault, human rights, and s25(11) of the Care Act – the options above cannot be regarded as solutions that meet needs, without a person’s consent. Which is why those options are not able to be cost-compared, as lawfully relevant considerations, unless the person DOES genuinely consent – and that means understanding that they don’t have to – they will still have legal rights to a properly identified care package or budget.
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The full Local Government Ombudsman report of London Borough of Bromley’s actions can be found here