Improper approaches to determining care budgets

Jonathan Auburn looks at the lessons to be learned from an Ombudsman report into the way a council calculated an individuals's care under the Care Act.

In a recent report, the Local Government and Social Care Ombudsman (“LGSCO”) has made some important findings about how local authorities may, and may not, calculate the cost of people’s care under the Care Act 2014. The decision is titled ‘Investigation into a complaint against Wiltshire County Council’ (LGSCO reference number: 16 015 946).

The context of the report was a complaint made to the Ombudsman by a Mrs N, the carer of both Mr P and Mr N, her son and husband respectively. Mr P has high level complex needs, arising from severe learning difficulties and epilepsy. He requires constant care. Up until 2016, Mrs N had received support from Wiltshire Council, including provision of 104 days of respite care per year, and transport for Mr P to and from his weekday care placement. However, this provision was abruptly and significantly reduced in 2016, when Mr P was reassessed.

Upon investigation, the Ombudsman found that the reduction in service provision had been made in line with Wiltshire Council policies, but that these policies were incompatible with the Care Act. The first impugned policy required an applicant to be assessed as falling within a particular general band of need. Their banding then dictated the maximum level of their funding. The second impugned policy involved a ‘Matrix Assessment Tool’, which the Council used to determine the level of respite care an applicant would receive. The stated purpose of this tool was to “ensure limited resources could be fairly allocated to families based on need.” The tool involved ascribing scores to the applicants, based on their need, current provision, and their carer’s situation. This score was used as the basis for calculating the number of nights respite care an applicant would receive each year. In making that calculation, the actual number of beds available was factored in. The tool, therefore, essentially functioned to ration limited resources between applicants.

The Ombudsman was critical of both policies, stating that “Councils cannot put a cap on people’s budgets: the Care Act says eligible needs must be met, regardless of the cost.” The Ombudsman held that the banding policy adopted by the Council fell foul of this. The Ombudsman further observed that while a council might deploy a policy involving bandings, these could be a guide only. Importantly, as observed in the Care and Support Statutory Guidance, any such general policies may not work well for people with multiple complex needs. Care must therefore be taken that a ‘one size fits all’ approach to resource allocation is not taken.

The Ombudsman also found the ‘Matrix Assessment Tool’ as it was applied by Wiltshire to be incompatible with the Care Act. He held that the Care Act requires councils to meet eligible needs. The tool was designed to allocate limited respite beds amongst applicants for respite care. The Ombudsman considered that this was not permitted under the Care Act, and that the Council should not have used this tool at all.

The use of banding and mathematical formulas is not uncommon in local authority schemes for determining allocation of social care resources. Such schemes can still be used under the Care Act. What the Ombudsman’s decision illustrates is that such schemes can only ever be a guide, and cannot be applied in a rigid manner to impose fixed ceilings on care provision. Particular caution is needed in cases involving applicants with multiple complex needs. Ultimately, whatever the approach local authorities take to determining a personal budget, they must ensure that a sufficient amount is allocated to meet the individual’s assessed needs.

Jonathan Auburn is a barrister at 11KBW. He can be contacted on 020 7632 8500 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it . This article first appeared on the set's Community Care Law Blog.