A local authority breached the Care Act statutory guidance when it set an arbitrary limit on a woman’s personal budget which meant it was insufficient to cover the costs of her live-in care based, the Local Government and Social Care Ombudsman has found.
The watchdog found that Bromley council allocated Ms Y, a working-age adult who has long term health conditions, with what it said was the “maximum budget allowed for a working-age adult at home with 24-hour care”.
But the council set Ms Y’s budget based on the cost of a care home, rather than the cost of live-in care, which left a shortfall that meant that Ms Y had to pay the deficity out of her own pocket while her relative, Ms X, had to provide care for her to cover gaps caused by the underfunding.
Bromley has accepted the ombudsman’s judgment and agreed to pay Ms Y £4,500 to make up for the shortfall in funding compared to live-in care, review her care and support plan, apologise to Ms X and pay her £500 to acknowledge the additional strain she was placed under meeting Ms Y’s needs.
Decision for live-in care
In 2016, Ms Y lived in her own flat where her care and support needs were met by home care arranged by the council, while Ms X visited Ms Y daily and also provided care. Ms Y lacked mental capacity in relation to weighing up risks and Ms X had power of attorney to make decisions about Ms Y’s health, welfare, property and finances on her behalf.
During a hospital stay in 2016, Ms Y, Ms X and the council decided the only way to meet Ms Y’s needs and ensure her safety and wellbeing was in a care home. Ms Y was discharged with a council-managed home care service of four hours a day and a night-time care package to reduce risk and meet her needs, at a cost of £1,061.76 per week, while the council arranged a care home place.
In early 2017, Ms Y and Ms X said the home care package had shown them Ms Y’s needs could be met in her own home and it was now her wish to do so.
Following a review of Ms Y’s needs, the council said 24-hour care, seven days a week was required to ensure her safety and wellbeing. The assessment acknowledged Ms X and Ms Y’s preference for Ms Y to remain in her own home and said the council would support this.
Budget based on cost of local care home
The assessment set out the cost of 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, while the cost of live-in care was £864 for those with low needs, £977 for those with medium needs and £1090 for those with high needs.
The council agreed to fund Ms Y’s care at home via direct payments to Ms X, who would manage the payments and the carer employment process on Ms Y’s behalf.
In February 2017, the council set Ms Y’s personal budget as £823.93 per week, based on the figures provided by the local care home.
‘Maximum personal budget’
In May, Ms X told the council the budget was insufficient to meet Ms Y’s needs, but the council said the budget could not be increased, because it was “the maximum personal budget for 24-hour live-in care for someone under 65 years”.
Ms Y’s care manager reviewed her care in July. Ms X again told the council the personal budget did not cover the cost of her care and that she had struggled to employ care workers for the allocated personal budget. She had employed two workers but not a third, placing additional strain on Ms X, who said various live-in care providers had costed the package as between £950 and £1,300 a week.
While the care home manager put the case to panel that the budget should be increased, this was rejected on the grounds that there was “not enough evidence of need”.
Numerous complaints
Ms X requested a review of Ms Y’s care in January 2019 as she considered her care needs had increased. She again told the council that the personal budget did not meet the cost of Ms Y’s care and the care manager completed a review, agreeing to present a case to the panel for an increase in the personal budget.
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The care manager put the case for an increase in the budget to £1,050 a week in March 2019 – which the panel agreed – however, this was based on the cost of a local care home. The ombudsman found that none of the other options put to panel – all of which were more expensive was live-in care, despite the council agreeing this was the least restrictive way of meeting her needs in 2017.
In a formal complaint to the council, Ms X reiterated that Ms Y’s personal budget was not enough to meet her needs and she had been telling the council this for two years. She said the personal budget did not cover the costs of weekend care and Ms Y was funding this herself at a cost of £440 per month. Following the panel decision to increase the budget, the council said it was supporting Ms Y’s wish to live at home and that the care package she had should be supporting her wellbeing.
Multiple failings
The ombudsman found that the council breached the Care Act, in setting a budget that was insufficient to meet Ms Y’s needs, and putting an arbitrary upper limit on how much it would pay to meet care needs in a particular way.
The council set Ms Y’s budget based on the cost of a care home which, the ombudsman said, it could do as long as it was satisfied that, in receiving care at home, Ms Y’s needs could be met from the budget allocated. However, it did not do this, setting a budget that was £40 a week short of the cost of meeting live-in care for those with the lowest needs.
In May 2017, the council told Ms X the budget could not be increased as it was the “maximum budget allowed for a working-age adult at home with 24-hour care”, which the ombudsman found was applying an arbitrary limit, contrary to the statutory guidance. The ombudsman said the lack of any detail in the care and support plan about how Ms Y’s needs would be met by 24-hour live-in care meant when it was presented to the council’s panel in 2017 it was not clear why the budget was not meeting her needs. The council therefore missed the opportunity to review the personal budget and set it at a level that would meet her needs, which was a fault.
‘Distress, time and trouble’
The council also failed when it reviewed Ms Y’s personal budget in March 2019 and again used the care home comparison to set the personal budget, rather than the cost of live-in care provision in Ms Y’s home.
The ombudsman calculated that, as a result of the council’s failings, Ms Y received around £40 less than she should have for 26 months between February 2017 and March 2019, meaning she had to use her own money to pay for additional care and support at weekends.
The report also found that Ms X had had to provide care for Ms Y herself to cover gaps in care caused by the underfunding. The ombudsman said the matter has also caused Ms X “distress and time and trouble” pursuing her complaint.
Bromley council has been approached for comment and the story will be updated when this is received.
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It is good that the Ombudsman found in favour of Ms X and Ms Y by using the Care Act 2014.
Now all this occurred during 2017 to 2019, which was preCOVID-19 and I fear a different outcome was be achieved should this have occurred during 2020 or even now as the some of the Care Act 2014 provisions were ‘temporally’ withdrawn by the Coronavirus Act 2020.
The care needs and support plan would still be the same, but, not, perhaps the Ombudsman outcome.
Should this be correct how can this be right for care needs should never be ignored.
This part of the Coronavirus Act and the similar section for children should be immediately withdrawn and bring persons in need of care as the priority and not the Local Authorities.
Of course much of this would be not as much of a concern, if Local Authorities (LAs) had sufficient finance to fully fund all care needs, but this has been severely restricted due to 10 years of austerity cuts imposed on LAs by Conservatives Governments and the additional costs relating to COVID-19 none of which have been anywhere near covered by the minimal reimbursement of COVID costs by this Government.
Persons in need of care have enough to contend with, without their care needs being insufficiently catered for. This Government and their predecessors have a lot to answer for.
What can we do, well supporting the petition, Solve the crisis in Social Care,
https://you.38degrees.org.uk/petitions/solve-the-crisis-in-social-, could be one solution.
The problem is the Care Act says costs of identified care must be met in full regardless of Austerity. Clearly the Government want their cake and to eat as well. Brilliant solution by the Tories leave them with not enough money to meet identified care and support needs while giving them a legal duty to meet the full cost of support plan. The beauty of this is that local authority social services take the blame and are shamed in publications such as community care. The government really don’t care how much proof do people need. The answer to such problems stop voting for useless austerity loving Tory Governments it’s not rocket science.
Just in December CC reported a similar censure for Durham council. Now here we are again with the same mindset, the same outcome. On a similar story Birmingham council did not respond or comment to CC. Let’s hope Bromley take ownership and go beyond the lessons will be learnt narrative.
Labour Councils don’t have to impose cuts and deny services just because the Tory headangers demand they should. I am old enough to remember the defiance of some London councils and Liverpool City Council and the role of Scottish councils in the destruction of the Poll Tax. The decisions Councillors make are never inevitable. Why are some Labour councils denying services to vulnerable people while at the same time embarking on vanity projects? Which bit of Tory legislation compels those Councillors to pay management consultants, project managers and architects millions of pounds for next to useless developments while blaming central government funding for lack of decent services. They should be shamed for their complicity in driving through austerity misery and we should be ashamed of a “profession” that aggregates independence and moral fibre into dishonest helplessness.