Summary: Mr X complains about the Council’s handling of his mother’s needs assessment and care home fees. There have been faults by the Council, including the failure to assess the risks to his mother of moving to another care home. This did not cause injustice to his mother which warrants a remedy. But the Council needs to make sure it assesses the risks of moving other people in similar circumstances.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council:
• delayed in assessing his mother’s needs;
• failed to assess them properly, in particular the risk of moving to another care home;
• failed to accept responsibility for funding her placement from the date her capital fell below £23,250; and
• failed to communicate properly about the need for a top-up agreement.

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The Ombudsman’s role and powers

2. 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)
3. 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, sections 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Mr X’s Solicitor;
• discussed the complaint with Mr X’s Solicitor;
• considered the comments and documents the Council has provided in response to my enquiries; and
• shared a draft of this statement with Mr X’s Solicitor and the Council, and invited comments for me to consider before making my final decision.

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What I found

What happened

5. Mr X’s mother, Mrs Y, lacks the capacity to manage her finances or decide where her care needs should be met. Her children have joint powers of attorney for property and financial affairs, and health and welfare. She moved to Care Home A in late 2016. The Solicitor says this was not the family’s first choice. He says at least one other home said it could not meet her needs because of her mobility problems and high care needs. As they were under pressure for Mrs Y to leave hospital, they chose Care Home A. Mrs Y funded her own placement.
6. In July 2017, following a safeguarding incident, the Council held a best interests meeting. It decided it was in Mrs Y’s best interests to have her needs met in a care home which:
• could either provide Catholic mass, or support her to attend mass elsewhere; and
• was close enough for her family to keep regular contact.
7. In December 2017 Mrs Y’s family told the Council her capital would soon fall below the upper capital threshold (£23,250), below which she would be eligible for Council funding. She was paying £1,400 a week for her placement at Care Home A, although the Council’s records suggest she was paying £1,700.
8. The Council assessed Mrs Y’s needs in March 2018. The assessment says her family said it would be harmful to move her. Care Home A said she had been very disorientated when she first moved there, and it took her about six months to settle without asking to go home. Mrs Y confirmed she liked living there and wanted to stay. The Council decided an “in depth conversation on placement was not appropriate at this point due to the distress likely to have been caused to” Mrs Y. The assessment says Mrs Y needs 24-hour care and identifies “no change in long-term support”. The assessment does not include an indicative personal budget.
9. When the Council completed Mrs Y’s financial assessment on 5 April, it decided her capital fell below £23,250 on 31 March 2018, from which date she became eligible for its funding.
10. The Council updated Mrs Y’s assessment on 5 April and included an indicative personal budget of £718 a week. It also added this statement:
• “[She] has already had to get used to [Care Home A] being her home on two occasions following admitted to hospital. Each period of adjustment is extensive, given her dementia, and has had a detrimental affect on her health. [She] has settled, and she now recognises [Care Home A] as her permanent home.”
11. The Council sent a letter (undated) saying it had identified three care homes (including Care Home B) which would accept £729.16 a week (including Funded Nursing Care) “in line with the Council’s personal budget”. It said it would not therefore pay more than that.
12. On 30 April Mr X’s Solicitor wrote to the Council. He said:
• it had told Mrs Y’s family she would have to move if they did not pay a top-up;
• it had not done an impact statement on the effects of moving on Mrs Y’s mental health;
• it had only completed a draft needs assessment;
• any placement must meet Mrs Y’s faith needs;
• her family must be able to keep regular contact;
• the alternative placements viewed by the family did not offer the range of activities available at Care Home A;
• the assessor did not even discuss the possibility of a move with Mrs Y because of the risk of distressing her;
• Mrs Y was disoriented when she first arrived and took six months to settle. She also needed time to adjust when returning to Care Home A after two stays in hospital. Her distress would be greater if she moved elsewhere, with a risk that she would not adapt;
• the three homes proposed by the Council have narrow corridors which would make it difficult for Mrs Y to use her walking frame with accompanying support, potentially reducing her independence;
• an unfamiliar environment would increase the risk of falls and Mrs Y, who has osteoporosis, breaking bones;
• it could not apply standard rates which did not take account of underlying eligible needs;
• it needed to assess the effects of a move on Mrs Y.
13. The Council told the Solicitor Mrs Y’s Social Worker would visit on 19 June to review her care needs taking account of the points raised about a proposed move. The record of her visit says Mrs Y:
• “is a vulnerable individual due to frailty and any move may have a detrimental impact on her wellbeing. However, there is no evidence to suggests that her needs cannot be fully met elsewhere with the same level of support”.
14. The Council says this addressed the risk to Mrs Y from moving to another care home.
15. On 24 July the Council told the Solicitor it would negotiate with Care Home A about its charges, to see if Mrs Y could stay there. But it said it would not meet the costs pending the outcome.
16. The Council e-mailed the Care Provider which runs Care Home A on 15 August, offering to pay £1,000 for Mrs Y’s placement (including Funded Nursing Care). The Care Provider tried to contact the Council but it did not respond.
17. On 1 October the Council wrote to the Solicitor. It said negotiations with Care Home A continued but they had not yet agreed a fee the Council would accept. It said Care Home B (one of the care homes identified in paragraph 9 above) could meet Mrs Y’s needs in the same way as Care Home A as:
• it could arrange for a priest to visit;
• a hairstylist visits weekly, or when needed;
• the home houses people with wheeled walkers without any issues;
• a chiropodist visits weekly;
• it could arrange physiotherapy;
• two co-ordinators are on duty seven days a week providing activities like those available at Care Home A;
• it is 20 minutes from Care Home A and is not less accessible to Mrs Y’s relatives who live in various locations.
18. The Council said:
• “It is not disputed that any move for [Mrs Y], as with many residents with physical and or mental impairment, is undesirable. It is unfortunate that the placement at [Care Home A] was identified without consideration of the long term cost and affordability. All of these factors are carefully considered by the Council prior to any decision about placement of clients. With this in mind the Council maintains its view that it can identify and in fact found an alternative placement for [Mrs Y] which could meet her needs and which the Council is able to commission on her behalf.”
• “It is expected that there will be some disruption to [Mrs Y’s] care and usual routine with likely impact on her mental health particularly disorientation as a result of a move. This is unavoidable due to the Council's duty to ensure best value in the services commissioned at the same time as meeting its statutory duty to meet [Mrs Y’s] assessed care needs. If the Council were to pay for [Mrs Y’s] care at [Care Home A] it would be failing to achieve best value and would be inequitable in its provision of services to other residents to whom it owes a duty.”
19. On 19 October Mrs Y’s family told the Council Care Home A had agreed to accept £1,150 a week and the family would pay a top-up of £150 a week.
20. On 13 December Care Home A confirmed it would accept £1,150 a week. The Council agreed to pay £1,000 a week from 1 September, with the family paying a top-up of £150 a week. It sent a third-party top-up form for the family to complete.
21. On 8 January 2019, the Care Provider’s Solicitor wrote to Council (copying the letter to Mr X’s Solicitor) saying:
• the Care Provider had not agreed to accept £1,000 a week from 1 September 2018;
• Mrs Y should not be moved so the Council needed to pay the full fees;
• Mrs Y owed the Care Provider £55,885.
22. On 12 February the Care Provider gave Mrs Y 28 days’ notice to quit Care Home A.
23. On 13 March the Care Provider agreed to withdraw the notice for Mrs Y to quit, if she made a significant payment towards the outstanding fees. Mrs Y paid £25,000 towards the arrears for 1 April to 31 August 2018. She paid a further £4,542.86, including a £4,000 from her sister, towards the top-up arising since 1 September 2018. The Solicitor says there is still a debt to the Care Provider, but it has not chased it and they are not clear how much it is.
24. On 23 March Mrs Y’s children signed a top-up agreement for £150 a week.
25. In May the Council completed a financial assessment for Mrs Y. It says she would have to contribute these weekly sums towards the cost of her care:
• £286.17 from 1 September 2018:
• £200.57 from 29 September 2018;
• £205.57 from 8 April 2019.
26. On 23 July Mrs Y’s children signed another top-up agreement, this time as those with power of attorney for Mrs Y’s sister.
27. The Council agreed to fund the placement from 15 August 2018, because it did not respond to the Care Provider’s call that day, which may have been about an offer to accept a reduced fee.
28. The Council says it is not usual practice to do a written risk assessment over the risk to someone’s wellbeing from moving to another care home. It says:
• “Whilst we would ideally enable all residents to remain in their current placement should this be their wish, we have a duty to the public purse to ensure that a placement is best value and it is also vital that we are equitable in our provision of services to other residents to whom we owe a duty.”

Is there evidence of fault by the Council which caused injustice?

29. There was some delay by the Council in assessing Mrs Y’s needs, which is fault. But I cannot say this caused a significant injustice as the Council did an assessment before her capital fell below £23,250. It then identified three homes which would charge significantly less than Mrs Y was paying for Care Home A. Paragraph 10.27 of the Care and Support Statutory Guidance says:
• “In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties. This includes the importance of ensuring that the funding available to the local authority is sufficient to meet the needs of the entire local population. The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met). However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles. The authority may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs, and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value.”
30. This means the Council can take account of cost when deciding how to meet someone’s needs. But cost cannot be the only factor. When the Council wrote to Mrs Y’s family in April 2018 (see paragraph 9 above), cost was the only factor it took account of. That was fault by the Council. The Council should also have considered the impact on Mrs Y of moving. The Council accepts moving would have an adverse impact on Mrs Y. But it has not done a formal risk assessment, despite the Solicitor asking it to do one, as that is not its usual practice. That is fault by the Council. The visit on 19 June 2018 did not assess the risks to Mrs Y from moving. It simply accepted there “may” have been a risk but did not weigh up the consequences of the risks and whether they were enough to prevent a move. That Mrs Y’s needs could be met in another care home did not, in itself, mean she could be moved.
31. While it is clear moving Mrs Y to an affordable care home would have had an adverse impact on her, that in itself is not enough to say she could not move. Councils need to weigh up the impact on the individual against the cost of funding a more expensive placement. In broad terms, the higher the cost the greater the impact on the individual would need to be for it to become unacceptable. While I cannot be sure what the outcome of a risk assessment would have been in March 2018, it seems unlikely the Council would have decided Mrs Y could not be moved, given that her fees were £670 higher than it would have paid for Care Home B.
32. Mrs Y’s placement at Care Home A has now been secured by:
• the Care Provider’s decision to reduce its fees;
• the Council’s offer to pay £1,000 a week (including Funded Nursing Care and Mrs Y’s assessed contribution) from 15 August 2018;
• the family’s agreement to pay a top-up; and
• Mrs Y paying outstanding charges to Care Home A.
33. The key issue therefore relates to the period between 31 March 2018, when Mrs Y’s capital fell below £23,250, and 15 August 2018, from when the Council has contracted with Care Home A to pay its fees.
34. The Council has satisfied itself Care Home B could meet Mrs Y’s needs. I can find no fault with the way it decided that. Nevertheless, there was a delay in reporting its decision after the Solicitor identified the family’s concerns in on 30 April, as it only did this on 1 October. That was fault.
35. The question for me to consider is what would have happened if there had been no fault by the Council and it had:
• assessed the risk of moving Mrs Y when it assessed her needs in March 2018;
• had responded promptly to the questions the Solicitor raised about the suitability of the affordable placements identified by the Council.
36. To have a contract with Care Home A from 31 March 2018, the Council would have needed a top-up agreement with a third party. It is clear there was no one willing or able to enter into such an agreement until Care Home A agreed to reduce its charge. The only viable option would have been for Mrs Y to move to an affordable placement.
37. The Solicitor says the Council’s failings left the family without the information they needed “when making the very difficult decision of whether to move Mrs Y”. It is unclear whether the family would have decided to move Mrs Y if they had had this information. The evidence leads me to conclude this was unlikely. This takes account of the facts that the family:
• consulted a Solicitor as soon as the Council proposed moving Mrs Y;
• had the clear objective for Mrs Y to remain at Care Home A;
• was prepared to take the risk of accruing very significant debts without any clear prospect of being able to pay them.
38. It seems more likely to me that the family would have continued to pursue their concerns with a view to Mrs Y remaining at Care Home A, despite the financial risks involved. Within that context, there is not enough evidence for me to say the Council’s faults have caused injustice to Mrs Y and her family.

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Agreed action

39. I recommended the Council within eight weeks takes action (and provides evidence it has done this) to ensure it formally assesses the risk of moving someone to another care home before deciding it is reasonable to expect them to do so, when they are already placed in a care home which is meeting their needs. The Council has agreed to do this.

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Final decision

40. I have completed my investigation as the Council has agreed to take the action I have recommended.

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Investigator's decision on behalf of the Ombudsman