• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Final decision

The Ombudsman's final decision:

Summary: Mr Y and Mr Z complain about the Council’s decision to move Mrs X to another care home. There was unnecessary delay in progressing needs and financial assessments, which created uncertainty and frustration. The Council was also at fault in how it dealt with Mr Y and Mr’s complaints and requests for information. The Council has agreed to apologise to Mr Y and Mr Z, and make a payment to Mr Y for the time and trouble spent making his complaints. The Council will arrange a manageable repayment plan with Mr Y for Mrs X’s contribution to her care costs. The Council will also review its disclosure procedures to avoid impeding access to information unnecessarily.

The complaint

1. The complainant, whom I have called Mrs X, has made her complaint via two representatives – Mr Y, her son and attorney, and Mr Z, a professional adviser from a charity which supports Mrs X. Mrs X has given consent for Mr Y and Mr Z to make this complaint on her behalf.
2. Mr Y complains about the Council’s decision to move his mother, Mrs X, to another care home. Mr Y is concerned his mother is not well enough to be moved from a care home where she is very settled. Mr Y also complains that the Council has not provided any information to him or Mrs X’s other representative, Mr Z, about its assessment of Mrs X’s needs or personal budget. Mr Z is concerned the Council has not assessed Mrs X’s needs as a deafblind person in line with statutory guidance. Mr Y is also concerned with the way the Council has invoiced Mrs X for her contribution to care costs and the extent to which this will deplete her funds.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. 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. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
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. I have spoken to Mr Y and Mr Z, and considered the information they have provided in support of their complaints.
8. I have considered the information the Council has provided in response to my enquiries.
9. Mr Y, Mr Z and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation and guidance

Care Plan

10. The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the local authority must involve any carer the adult has. The support plan may include a personal budget which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
11. Upon completion of the plan, the council must give a copy of the final plan which should be in a format that is accessible to the person for whom the plan is intended, any other person they request to receive a copy, and their independent advocate if they have one and the person agrees.

Personal Budgets

12. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be an amount enough to meet the person’s care and support needs.

Choice of care homes

13. The (Choice of Accommodation) Regulations 2014 (SI 2014/2670) sets out what people should expect from a council when it arranges a care home place for them. It says that once a needs assessment has determined what type of accommodation will best suit the person’s needs, the person will have a right to choose the particular provider or location, subject to certain conditions.
14. The council has to arrange to accommodate the person in a care home of his or her choice provided:

• the accommodation is suitable for the person’s assessed needs;
• to do so would not cost the local authority more than the amount in the adult’s personal budget for accommodation of that type;
• the accommodation is available; and,
• the provider of the accommodation is willing to enter a contract with the local authority to provide the care at the rate identified in the person’s personal budget on the local authority’s terms and conditions.

Top up payment

15. The care and support planning process will identify how best to meet a person’s needs. As part of that, the council must provide the person with a personal budget. The personal budget is the cost to the council of meeting the person’s needs which the council chooses or is required to meet. The council must ensure that at least one choice is available that is affordable within a person’s personal budget and should ensure there is more than one choice.
16. 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. A top up fee is the difference between the personal budget and the cost of a home.

Charging for permanent residential care

17. 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 must follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
18. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
19. 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.

Assessment for people who are deafblind

20. Councils must ensure that an expert is involved in the assessment of adults who are deafblind, including where a deafblind person is carrying out a supported self-assessment jointly with the council. People are regarded as deafblind if their combined sight and hearing impairment causes difficulties with communication, access to information and mobility. This includes people with progressive sight and hearing loss.
21. During an assessment if there is the appearance of both sensory impairments, even if when taken separately each impairment appears relatively mild, the assessor must consider whether the person is deafblind as defined above. If the person is deafblind, this must trigger a specialist assessment. This specialist assessment must be carried out by an assessor or team that has received the appropriate level of professional training to undertake assessment.

What happened

22. This timeline of key events does not include everything that happened.
23. In 2013, Mrs X moved into a care home as she was no longer able to live without support. Mrs X chose and paid care home fees privately and did not involve the Council in arranging the care home placement.
24. In March 2017, Mr Y made a safeguarding referral about the care home where Mrs X was living. The Council investigated his concerns and took action to ensure the care home addressed any issues identified. Mr Y felt Mrs X was unable to remain in this care home. Mrs X moved to her current care home shortly afterwards.
25. The Council explained to Mr Y the care home his mother had moved to charged a higher rate than the usual amount the Council paid for care. The Council wrote to Mr Y on 29 March 2017 and advised him it could not guarantee that Mrs X would be able to remain in this care home when her funds ran out and the Council took over paying her fees.
26. In June 2018, Mrs X’s funds ran out and she was no longer able to afford to pay her own care home fees. Mr Y contacted the Council at the end of September 2018 to ask for help as Mrs X’s care home fees had not been paid for some time.
27. The Council completed a needs assessment of Mrs X on 10 October 2018 and a financial assessment to calculate the amount of the weekly contribution Mrs X could make towards her care costs on 19 October 2018. Mr Y attended both assessments to provide support to Mrs X. Mr Y expressed concerns about moving Mrs X from her current care home. He told the Council his mother was very settled and happy there. He also asked the Council to see if it could negotiate a lower weekly fee with the current care home to enable his mother to stay.
28. In December 2018, the Council telephoned Mr Y to explain negotiations with the care home had resulted in it offering to reduce the weekly fee from £1,200 to £1,000 per week. The Council explained the reduced weekly fee at Mrs X’s current care home was still considerably higher than the weekly amount calculated for her care elsewhere. The Council suggested alternative care homes that charged a lower weekly rate. Mr Y maintained he wanted Mrs X to stay where she was, but he said he was unable to meet the additional costs with a top up payment.
29. At the beginning of 2019, the Care Home manager asked for Mrs X to be assessed for Continuing Health Care (CHC) by the local Clinical Commissioning Group (CCG). The Manager was concerned that moving Mrs X would significantly impact on her health and that her healthcare needs had increased. The Council contacted Mr Y in March 2019 to tell him about the CHC assessment. The CHC assessment was completed shortly afterwards and concluded that Mrs X had no specific healthcare needs that could not be met within the community or residential (rather than nursing) care home placement.
30. On 21 May 2019, Mr Y complained about the delay in progressing Mrs X’s needs and financial assessments. Mr Y said his mother had been assessed in October 2018 and he had yet to hear from the Council about what would happen next.
31. The Council met with Mr Y and Mrs X on 24 May 2019 to discuss what had happened. The Council explained it could not sustain Mrs X’s placement in her current care home because the cost was too high. Mr Y felt his mother was not well enough to move. The Council tried to reassure him by explaining it would assess Mrs X’s fitness to move before placing her in another care home. The Council agreed to see if it could negotiate a lower fee with the existing care home and would undertake a nursing needs assessment as Mr Y believed Mrs X’s needs had increased.
32. The following day, the Council contacted the care home to ask if it felt Mrs X’s needs had increased and to confirm the current outstanding balance of fees Mrs X owed. The Council found Mrs X’s funds fell below the upper capital limit threshold at the beginning of June 2018.
33. Mr Y contacted the Council again in early June 2019 to express his continued concerns about his mother’s health if the Council insisted on moving her. The Council continued to enquire about placements in other care homes in the area that were within the budget the Council had calculated.
34. On 2 July 2019, the Council wrote to Mr Y to explain it would pay off the outstanding fees Mrs X owed to the current home from 4 June 2018, when her capital had fallen below the upper capital limit threshold, to 1 July 2019. It confirmed the outstanding fees were £66,817.13. The Council also explained it would pay Mrs X’s fees for a further six weeks while it found an alternative care home placement and assessed if Mrs X had any nursing needs.
35. In August 2019, the Council contacted Mr Y to discuss Mrs X’s move to another care home. Mr Y still felt his mother was unfit to move. He said he had not yet had the chance to consider the alternative care homes the Council had suggested because he was recovering from a recent operation and was unable to drive. Mr Y made a further complaint to the Council about feeling bullied into moving his mother. The Council arranged to meet with Mr Y at the end of August 2019 to discuss his concerns further.
36. At the meeting with the Council, it apologised if Mr Y had felt pressured into viewing alternative care homes for Mrs X while recovering from his operation. Mr Y agreed to allow the Council to move his mother to his preferred care home from the list of three homes the Council had identified in the area. Mr Y agreed to Mrs X being moved in four weeks as there currently were no placements available.
37. From the end of August to the beginning of November 2019, the Council continued to liaise with the new care home to try and secure a placement for Mrs X. Mr Y raised concerns about the situation with his Member of Parliament (MP), who contacted the Council about the matter in late September and October 2019. Mr Y also told the Council he had escalated his complaint to the Ombudsman. The Council explained to Mr Y and his MP that it had been unable to secure a placement for Mrs X in the preferred new care home and would continue to pay care home fees at the current placement until it could move her.
38. In early November 2019, the Council was able to secure a placement at the new care home for Mrs X. Mr Y told the Council he was no longer happy for Mrs X to be moved as her health had since deteriorated significantly and he feared the move could kill her. The Council agreed to undertake a further assessment of Mrs X to see if she now had specific nursing needs.
39. On 18 November 2019, Mr Z wrote to the Council on Mrs X and Mr Y’s behalf. He raised concerns about the Council’s assessment of Mrs X as she was registered blind. Mr Z asked the Council to provide evidence it had conducted its assessments of Mrs X’s needs in line with the specific statutory guidance for deafblind people. Mr Z asked for copies of the Council’s needs and financial assessments it had completed for Mrs X in the last 18 months. Mr Y had asked the Council for the same information on 5 November 2019. The Council signposted Mr Y to its Transparency Team who it advised would help with this request.
40. The Council replied to Mr Z on 20 November 2019 to explain it could not respond to his requests because the matter was the subject of an ongoing Ombudsman investigation.
41. The Council arranged with the care home for Mrs X to receive a specialist deafblind needs assessment in early January 2020. This was following certification from Mrs X’s doctor on 21 November 2019, that she was registered blind. On 14 February 2020, the care home informed the Council that Mrs X had been assessed to have nursing needs on 25 November 2019.
42. On 5 January 2020, the Council sent Mr Y an invoice for Mrs X’s contribution to her care costs. The invoice covered the period from 4 June 2018 to 31 December 2019 and requested a total amount of £20,449.42. The invoice stated payment in full was required by 27 January 2020. Mr Y did not expect to receive an invoice for the total amount owed and says Mrs X will have no funds left if she has to clear the invoice in one payment.
43. Mrs X remains at her current care home and the Council continues to pay her fees.

Analysis

Council decision to move Mrs X

44. The Council informed Mr Y in March 2017 that it was unlikely to sustain Mrs X’s placement at her current care home as the cost exceeded the amount the Council would usually pay. The Council’s decision to find a more cost-effective care home placement for Mrs X was made without fault and with fair warning to Mr Y before Mrs X moved into her current care home.
45. The Council has involved Mrs X and Mr Y in the process of choosing an alternative care home placement. It ensured Mr Y was present at meetings with Mrs X to provide support as her attorney. The Council recognised Mrs X and Mr Y’s anxieties based on the experience at a previous care home and sought to reassure them about the move.
46. The Council has not yet undertaken the assessment to check Mrs X’s fitness to move. This is appropriate because such an assessment should be completed as near as possible to the date of the move to ensure the Council has an up to date and accurate picture of Mrs X’s health.

Deafblind assessment

47. Mrs X was registered blind on 6 November 2019 and the Council received notification of this on 18 November 2019. It processed this new information without delay and took steps to ensure Mrs X was assessed by a specialist trained in deafblind assessments.
48. There was no fault in the way the Council undertook needs and financial assessments for Mrs X in October 2018, as this was more than a year before she was registered blind.

Needs and financial assessment

49. The Council undertook assessments shortly after Mr Y notified it that Mrs X was no longer able to pay for her care. The contents of these assessments were not however shared with Mr Y or Mrs X in a timely way. Mr Y’s complaint in May 2019, some seven months after the assessment, still did not result in the Council sharing details of its assessments of Mrs X’s needs, including the amount of financial contribution Mrs X was expected to make towards the cost of her care. This was fault which caused uncertainty and unnecessary frustration to Mr Y.
50. Mr Y’s further complaints about this, directly and via his MP, failed to result in the Council sharing the information requested. Mr Z’s involvement in November 2019 also proved fruitless in obtaining the information Mr Y had previously requested. The Council’s approach that it could not share information with Mr Y or Mr Z because the matter had since been escalated to the Ombudsman was inappropriate and put the complainants to unnecessary time and trouble. Some of the concerns Mr Y and Mr Z raised with the Ombudsman about the Council’s lack of transparency might have been avoided if it had disclosed the information requested. The Council’s refusal to share this information seems to have only added Mr Y and Mr Z’s concerns that something might be amiss with the Council’s assessment of Mrs X’s needs.
51. In addition, the Council’s delay and then refusal to provide information to Mr Y about Mrs X’s assessments has meant arrangements were not put in place to obtain payment of Mrs X’s calculated contribution towards her care costs.

Invoicing for care costs

52. The Council’s complaint response in July 2019 advised Mr Y that it would pay the outstanding balance of care costs Mrs X owed to her current care home. There was no indication within this response that the Council intended to then recover a proportion of this back from Mrs X. This ambiguity and lack of clarity is fault that has caused Mr Y unnecessary distress and confusion.
53. The Council’s invoice to Mr Y in January 2020 appears to be the amount Mrs X would have been expected to pay in contribution to her care costs. This has not however been clarified. The lack of clarity in the Council’s correspondence with Mr Y about the invoice has added to his distress as he says his mother does not have sufficient funds to clear the invoice in one payment as requested.
54. The Council should have set up arrangements to take regular payments for Mrs X’s contribution to her care costs shortly after it completed the financial assessment in October 2018. It was fault not to do so and this has placed an avoidable strain on Mrs X’s already diminished savings. Mr Z has said Mrs X now has so little left in savings that she can no longer cover the cost of her own funeral.

Agreed action

55. Within one month of the date of my final decision, the Council has agreed to:

• apologise to Mr Y and Mr Z for the way it which it dealt with their complaints and requests for information;
• make a payment of £300 to Mr Y in recognition of the Council’s delay, and the time and trouble he has spent raising concerns on his mother’s behalf; and,
• agree and set up a repayment plan for Mrs X to pay off the remainder of the care cost contributions invoice in instalments, using information from Mr Y about Mrs X’s financial expenditure to ensure the repayments are sustainable and affordable.

56. Within three months of my final decision, the Council has agreed to review its procedures to ensure it does not impede access to information requested by a complainant that has escalated their complaint to the Ombudsman.
57. The Council should provide the Ombudsman with evidence that the above actions have been completed.

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Final decision

58. I have completed my investigation and found fault with the Council. This fault caused injustice to Mrs X, Mr Y and Mr Z and the Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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