Summary: The Council delayed carrying out an assessment of Mrs Y’s needs after her savings had reduced to the level where she was eligible for help with the cost of her care home fees. The Council also delayed offering alternative affordable care home placements and delayed contacting Mrs Y’s care home to see if it would enter a contract with the Council and reduce its fees. The Council has since paid the care home fees. The Council has agreed to apologise to Mrs Y’s son, who was pursuing the complaint on her behalf, and to take action to prevent similar failings in future.

The complaint

1. Mr X is complaining on behalf of his late mother, Mrs Y. He complains that the Council:
• Did not pay towards Mrs Y’s care costs after her savings fell below the upper threshold in June 2019. Mr X says this resulted in Mrs Y paying care costs that were not her responsibility.
• Delayed completing a continuing healthcare checklist which resulted in Mrs Y missing out on a significant amount of NHS funding.
• Wrongly insisted that Mrs Y would have to move from her care home as it had not signed up to the Council’s contractural framework.

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What I have investigated

2. I have investigated the complaints in the first and third bullet points of paragraph one. The last section of this statement explains why I have not investigated the complaint in the second bullet point.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I have:
• considered the complaint and the documents provided by Mr X;
• discussed the issues with Mr X;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and Mr X the opportunity to comment on my draft decision.

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What I found

Law and government guidance

Charging for permanent residential care

7. 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’. The Council must follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the cost of their residential care.
8. The rules state that people who have over 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 to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.

Choice of care homes

9. Where a council is responsible for meeting a person’s care and support needs and their needs have been assessed as requiring a particular type of accommodation in order to ensure that they are met, the person must have the right to choose between different providers of that type of accommodation provided that:
• the accommodation is suitable for the person’s assessed needs;
• to do so would not cost the council more than the amount in the person’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 council to provide the care at the rate identified in the person’s personal budget on the council’s terms and conditions.
10. This choice must not be limited to those settings or individual providers with which the council already contracts with or operates, or those that are within that council’s geographical boundary. It must be a genuine choice across the appropriate provision.

Top-up payments

11. The personal budget is the cost to the council of meeting the person’s needs. 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 increase the budget to ensure it meets the person’s needs.
12. If suitable accommodation is available for the amount identified in the personal budget, the person can still choose a more expensive care home if a third party is willing and able to pay the difference between the actual cost of the care home and the personal budget. This is called a ‘top-up’ payment.
13. The Council needs to ensure the person paying the top-up payment enters a written agreement with the Council and can meet the extra costs for the likely duration of the agreement.

Key events

14. Mrs Y moved into a care home in 2016. The Council was not involved in arranging the placement. As Mrs Y’s savings were above the upper threshold of £23,250, she paid the full cost of her care.
15. Mr X contacted the Council in March 2019. He said that Mrs Y’s savings would fall below the upper threshold in June 2019.
16. The Council told Mr X that the case would be allocated to a social worker who would arrange to carry out a care needs assessment.
17. An initial assessment was carried out on 2 August. The following month, the Council approved a personal budget of £595 per week, which was less than the amount charged by Mrs Y’s care home. The social worker told Mr X that the care home had not signed up to the Council’s contractual framework and so the only way Mrs Y could stay was if the home signed up and the family paid a ‘top-up’ fee to cover the difference between the amount the home charged, and the personal budget.
18. On 30 September, Mr X made a formal complaint to the Council. He asked the Council to provide him with a copy of Mrs Y’s assessment and care plan because he was concerned that the budget of £595 was not enough to meet all of Mrs Y’s needs.
19. The Council carried out another assessment the following month. The social worker also completed the Continuing Healthcare (CHC) checklist to establish if Mrs Y was eligible for any NHS funding.
20. The Council responded to Mr X’s complaint in December. It said that the needs assessment had been completed and a budget of £595 per week had been approved. It said that it had offered two alternative care homes to Mr X which were within budget but he had declined them.
21. The Council explained that the care and support plan could not be completed because the current provider was not on its contractual framework. It said that it had spoken to the care home and it was reviewing its former reluctance to sign up.
22. Mr X was not satisfied with the Council’s response to his complaint. He said that Mrs Y was old and frail and he did not want to move her. Mr X said that Mrs Y would not be in this predicament if the Council had carried out the care assessment and requested the CHC assessment in a timely manner.
23. The CHC assessment was carried out and the NHS agreed to pay £170 per week towards Mrs Y’s nursing care needs. The payments were backdated to 29 October.
24. Mr X told the Council that he was waiting to see if the home would drop their rate, and if they did, he and his brother would pay a top-up to allow Mrs Y to stay in the care home. He asked if he could do this or if Mrs Y had to move anyway because the care home had not signed up to the framework. The social worker told Mr X that they were waiting to see if the care home would sign up.
25. In the Council’s further response to Mr X’s complaint, it said that an alternative placement would have to be found because the care home would not sign up to the Council’s framework. It said that it would backdate the payments of £595 per week to the date Mr X told them that Mrs Y’s savings had gone below the threshold, which was 10 June. The Council said that if Mr X agreed with this, it would then discuss the refund process with him.
26. The Council then provided Mr X with the details of other care homes which had availability within Mrs Y’s personal budget. Mr X told the Council that he did not consider it should force his mother to move and he had escalated his complaint to the Ombudsman. He said that he would not agree to a move while we were considering his complaint.
27. In February 2020, the care home agreed to reduce its rate and in July, it signed up to the Council’s Interim Flexible Contracting Arrangement.
28. Mr X continued to pay the care home fees out of Mrs Y’s savings until she passed away in October 2020.
29. In November, the Council wrote to Mr X and told him that it had completed a financial assessment and calculated that Mrs Y should have contributed £391.28 per week from 10 June 2019 and then £398.66 from 6 April 2020. It sent Mr X an invoice for £27,133.25.
30. The care home then contacted Mr X to confirm that the Council had paid it for Mrs Y’s care for the period 10 June 2019 to 3 November 2020 and it gave him a refund of £57,023.98. Mr X has since paid the Council invoice of £27,133.25.

Analysis

31. Councils should ensure a person’s personal budget is sufficient to meet their needs. Councils cannot ask someone to pay a top-up unless an assessment of needs shows a resident can be moved and an affordable alternative placement has been offered. It must also provide a choice of care homes.
32. The Council carried out an assessment in August 2019 and then approved Mrs Y’s personal budget in September. It did not provide Mr X with details of more than one care home which was available within the personal budget until late October, over four months after Mrs Y’s funds had reduced to below the upper threshold. These delays were fault.
33. Councils should not limit a person’s choice of accommodation to those settings it already contracts with. The Council was aware that Mr X did not want to move Mrs Y to a different care home. The Council contacted the care provider in November 2019 to explore whether it would reduce its rate and enter into a contract with the Council. I consider the Council delayed doing so; this was fault.
34. In late December 2019, the Council told Mr X that the care home would not sign up to its framework and so Mrs Y would have to move to an alternative placement. The Council then found other accommodation which it considered was suitable and was available at the amount identified in Mrs Y’s personal budget. As explained in paragraph 9, the Council can refuse a person’s choice of accommodation if the provider of the accommodation is not willing to enter a contract with the Council to provide the care on the council’s terms and conditions. I have found no evidence of fault here.
35. The Council says that it has paid its usual fixed rate to the care home for the care Mrs Y received between 10 June 2019 and 4 October 2020. This was £595 per week until April 2020, and then £617 per week. While the Council says it has paid a total of £41,627, the evidence I have seen suggests that it has paid the full cost of Mrs Y’s care, £57,023.98. I consider it was appropriate for the Council to pay the full cost because of the failings identified in this statement, and because it did not ensure the family entered a written agreement to pay a top-up fee.

Injustice

36. Mrs Y’s estate has not been affected financially because the Council has paid the care home fees.
37. I consider the Council’s failings in this case caused Mr X to worry that Mrs Y would be forced to move and that the Council would not pay her care home fees. He was also put to avoidable time and trouble pursuing his complaint.

Agreed action

38. Within four weeks, the Council will apologise to Mr X for the failings identified in this case.
39. Within ten weeks, the Council will review its process for moving residents between long term care homes and ensure it is communicated to all relevant staff. The process will include:
• Details of what should happen when a resident wants to stay in a care home which costs more than the Council’s usual fixed rate or is not signed up to the framework.
• A requirement that social workers assess the risk of moving on the resident’s health and wellbeing before reaching a decision.

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Final decision

40. I have completed my investigation and uphold Mr X’s complaint. There was fault which caused injustice. The actions the Council has agreed to take are sufficient to remedy that injustice.

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Parts of the complaint that I did not investigate

41. The Ombudsman will not continue to investigate a matter which has not caused any significant injustice. I have not investigated whether the Council delayed completing a CHC checklist because I do not consider this alleged failing caused Mrs Y or Mr X any significant injustice.

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Investigator's decision on behalf of the Ombudsman