Summary: The complainant says the Council failed to give her husband financial support towards his residential care when it should have done, did not provide her with appropriate advice and should have challenged her decision to self-fund his residential care. The Ombudsman has not found evidence of fault by the Council and for this reason he has ended his consideration of this complaint.

The complaint

1. The complainant, who I shall call Mrs X, says the Council failed to give her husband, Mr X, financial support towards his residential care when it should have done. Mrs X’s representatives says the Council should have challenged her decision to self-fund Mr X’s residential care and that it did not provide her with appropriate advice and information.

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What I have investigated

2. I have exercised discretion to investigate matters that occurred more than 12 months ago because the potential injustice to Mrs X by the alleged fault could be significant.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

6. If we are satisfied with a council’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)

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How I considered this complaint

7. As part of my investigation I considered information provided by Mrs X’s representatives. I made enquiries of the Council and considered its response and information it provided. I set out my initial view on the complaint in a draft decision statement and I considered Mrs X’s representative’s comments.

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What I found

8. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
9. The rules state that people who have more than the upper capital limit (£23,250) are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced below this limit, they only have to pay an assessed contribution towards their fees.
10. The Council must assess the means of people who have less than the upper capital limit to decide how much they can contribute towards the cost of the care home fees.
11. The care and support planning process will identify how best to meet a person’s needs. The Council must provide the person with clear information about the money allocated to them to meet the needs identified in their care assessment. This is called the person’s personal budget. The Council must ensure that it offers at least one choice of care that is affordable within a person’s personal budget and should ensure there is more than one choice.
12. If no suitable accommodation is available at the amount identified in the personal budget, the Council must arrange care in a more expensive setting and adjust the budget to ensure it meets the person’s needs. In such circumstances, the Council must not ask anyone to pay a ‘top-up’ fee to meet the difference between their personal budget and the cost of the home.

Self-funders

13. A person with sufficient means and capacity may arrange and pay for their own residential care placement without involving the council.

Nursing care

14. An NHS screening assessment will establish whether a person has nursing needs. If they do, the NHS will pay for the nursing element of care in a nursing home. This is referred to as a Funded Nursing Contribution (FNC) to the overall cost of the care. Funded Nursing Care is the amount the NHS pays for nursing care in a care home. In some circumstances, the NHS is responsible for meeting the full cost of someone’s care in a home: this is referred to as NHS Continuing Health Care (CHC) or fully funded health care.

‘Ordinary resident’ disputes

15. Where an individual is an ‘ordinary resident’ determines which local authority is required to meet their eligible care and support needs under the Care Act. The Secretary of State for Health resolves disputes between authorities about where an individual is an ordinary resident.

Key events

16. Mr X has dementia. His care was managed by Mrs X with assistance from their two sons. I understand Mrs X has some physical health problems, had been tired and collapsed at her doctors. She had also previously had cancer. However, there was no suggestion that she did not have the ability to make sound decisions.
17. In 2016 Mrs X told the Council that Mr X’s behaviour had become more challenging and he had attempted to strangle her. She explained she was caring for her son who had pneumonia and this was placing additional pressure on her. Mrs X asked the Council for respite care for Mr X.
18. The Council carried out an assessment for Mr X with the input of Mrs X and their sons. The assessment concluded Mr X had severe dementia and required assistance with all daily living tasks and 24-hour supervision. The Council also referred Mr X for a CHC assessment.
19. The Council agreed to provide respite care and arranged a placement at Home Y where Mr X had previously stayed for respite care.
20. The Council assessed the contribution Mr X should make towards to the cost of his respite care. Taking account of his income and savings, the Council decided Mr X should contribute £262.99 per week towards his care.
21. Mr X’s placement at Home Y commenced but he did not settle well and required additional assistance during the night. Home Y told the Council it could not continue to care for Mr X as it could not ensure his safety and that other residents.
22. Mrs X said Mr X could not return home and so the Council sought an emergency placement with nursing care for him. It contacted over 20 nursing homes but none were able to offer Mr X a placement. The Council eventually found a nursing placement at Home Z in the neighbouring county of Cornwall.
23. The Council carried out a Mental Capacity Assessment for Mr X before the placement at Home Z commenced. It sought the view of the Council’s Older People’s Mental Health Team (OPMHT) who supported the move as it would allow for assessment of Mr X’s need for nursing care. Mrs X did not raise any objections to the placement and Mr X moved into Home Z.
24. Mr X’s social worker visited Mrs X and their sons to discuss Mr X’s case. Mrs X said he needed a long term placement as she could not continue to care for him. Mr X’s social worker explained that any placement would require funding and that he would await the outcome of the CHC assessment before discussing matters further.
25. The CHC assessment concluded Mr X did not require nursing care and his behaviour had stabilised since moving to Home Z. The assessment said Mr X was happy in Home Z and it might be in his best interests to remain there.
26. Mr X’s social worker told Mrs X the outcome of the CHC assessment. He explained Mr X’s current placement cost £800 per week which was more than the budget it had for his care. If Mr X remained at Home Z, then a top-up payment would be needed.
27. The social worker also told Mrs X about a home with lower weekly fees that might be suitable for Mr X. She asked the social worker to contact the home and arrange an assessment. The Council extended Mr X’s placement at Home Z while it did so.
28. Meanwhile Mrs X told Mr X’s social worker that she did not want him to leave Home Z and she was considering self-funding the placement. Notes from Mr X’s care records say the social worker told her to seek her own legal advice as the weekly cost of the placement was very high. Mrs X says he did not do so.
29. Mrs X contacted Mr X’s social worker a few days later to say she would self-fund the placement. Notes from Mr X’s care records say that Mrs X said she had taken financial and legal advice. The notes also say Mrs X said, Mr X would lose his Attendance Allowance when he moved into residential care and had a high pension, she would not be worse off if she self-funded the placement. Mrs X says she did not take any advice and did say she had done so.
30. Notes from Mr X’s care records show that his social worker told Mrs X self-funding was unwise and advised her to seek further legal and financial advice. He told her if she decided to self-fund then future assessments for Mr X would be done by Cornwall Council as he would be resident in that authority.
31. However, Mrs X was adamant she would self-fund the placement and said she had already arranged a Direct Debit with Home Z to pay for Mr X’s care.
32. A letter was sent to Mrs X confirming the above.
33. In April 2017 Mrs X contacted the Council to ask for assistance with funding Mr X’s placement at Home Z as his savings had now fallen below the savings threshold. The Council told her she would need to contact Cornwall Council as Mr X was ordinarily resident in that authority.
34. Mrs X instructed solicitors in 2018 and complained to the Council that it had not provided her with appropriate assistance when she decided to self-fund Mr X ‘s placement at Home Z and had told her the placement would end if she did not do so.
35. The Council replied saying its records showed it had fully discussed the funding of Mr X’s placement with her. It advised her not to self-fund but she had been adamant she wanted to do so. It also said it had extended Mr X’s placement so Mrs X was not under undue pressure to make a decision. It did not uphold her complaint.
36. Mrs X remains unhappy and escalated her complaint to the Ombudsman.

Analysis

37. I do not consider there is fault by the Council in the process that led Mrs X to decide to self-fund Mr X’s placement. This is because the Council:

• discussed the funding situation with Mrs X. The case records show that funding options were explained with reference to the funding available to Mr X;
• advised Mrs X to seek her own legal and financial advice regarding funding Mr X’s care;
• reiterated this advice when Mrs X said she had taken legal and financial advice and had decided to self-fund Mr X’s care;
• advised her, if she self-funded Mr X’s care, the Council would not be responsible for funding Mr X’s care in future; and
• expressed concern about the wisdom of her decision to self-fund.

38. I note Mrs X says she was not told to take seek her own legal and financial advice. She says she did not do so and did not tell the Council that she had. There is clearly a difference of opinion between Mrs X and the Council. The care records provided by the Council were made contemporaneously and so I have no reason to doubt their validity. The records also provide details about the advice the Council gave and reasons why Mrs X had decided to self-fund. I consider, based on the evidence available to me, it is more likely the Council told Mrs X to seek advice and that she did so.
39. Questions have been raised about why the Council did not intervene to stop Mrs X self-funding the placement given the financial assessments concluded he would be entitled to some financial assistance from the Council. Mrs X told the Council she had sought legal and financial advice. Further, there was nothing to suggest Mrs X’s ability to make a decision was impaired. For these reasons I do not consider there were grounds for the Council to intervene and stop Mrs X taking the course of action she had chosen.
40. It is contended the Council threatened to end Mr X’s placement at Home Z if Mrs X did not agree to fund the placement. I do not agree. The care records provided by the Council show it extended the placement following conversations with Mrs X about funding. This allowed her to consider her options with no immediate change to Mr X’s care.
41. Further, Mrs X was aware the Council was still looking for a suitable but cheaper placement for Mr X when she decided to self-fund the placement at Home Z.
42. Mrs X’s representatives say the Council did not consider if a move from Home Z was in Mr X’s best interests. I note Mr X’s case records say that any move from Home Z would require a ‘Best Interest’ decision. However, the Council could not make such a decision because it had not identified an alternative placement before Mrs X decided to self-fund.
43. It is suggested that, if the Council had been unable to find suitable alternative accommodation, Mr X would have remained at Home Z with the Council paying the top-up amount. He would therefore have been able to stay there at no additional cost to him and Mrs X. However, this would only have continued until the Council was able to find a suitable alternative placement for Mr X.

Final decision

44. I have ended my investigation of this complaint as I have not found evidence of fault by the Council.

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Parts of the complaint that I did not investigate

45. I note there is a dispute between the Council and Cornwall Council about where Mr X is ordinarily resident. The Ombudsman cannot get involved in this as disputes of this nature are for the Secretary of State to resolve.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman