Summary: Miss X and Ms Y complained the Council delayed finding a long-term residential placement for their relative Mrs Z. The Council initially delayed allocating a social worker to complete Mrs Z’s needs assessment and delayed completing her financial assessment. This was fault. The Council has agreed to apologise and make a payment to Ms Y to acknowledge the distress and frustration this caused. There was no fault in the way the Council then arranged a placement.

The complaint

1. Miss X and Ms Y complain the Council delayed finding a long-term residential placement for their relative Mrs Z. In addition, the Council delayed providing information in writing and an officer was rude to Miss X. This placed Miss X and Ms Y under significant strain and caused them and Mrs Z distress and frustration. In addition, Miss X says the family had to purchase a sensor mat which they would not have required if Mrs Z had moved into permanent residential care earlier.

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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. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
4. 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

5. I have considered the information supplied by Miss X and have discussed the complaint with her on the telephone. I have considered the Council’s response to my enquiries.
6. I gave Miss X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

Relevant Law and guidance

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”. 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.
8. The rules state that people who have over the upper capital limit (currently £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.
9. Councils 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. In calculating income they may take most of the benefits people receive into account. The council must leave the person with a minimum amount of income known as the personal expenses allowance.
10. As part of the care and support planning process, the council must provide the person with a personal budget. In circumstances where a placement in a care home is necessary, the Care Act says there must be at least one placement choice available that is affordable within the personal budget. 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 these circumstances, the council must not ask anyone to pay a top-up fee.
11. However, if a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, it can still arrange a place at the home if:
• The person can find someone else (a ‘third party’) to pay the top-up.
• The resident has entered a deferred payment scheme with the council and is willing to pay the top-up fee himself.
12. In such circumstances, the council needs to ensure the person paying the ‘top-up’ enters a written agreement with the council and can meet the extra costs for the likely duration of the agreement.

What happened

13. Mrs Z has dementia and physical health conditions. She has lived with Miss X and Ms Y for nine years. Mrs Z attended a day centre five days a week and had a carer visit her each morning to assist with personal care. From September 2019, after her annual review, Mrs Z also received eight weeks a year of respite to give Ms Y a break from her caring role.
14. In October 2019 Mrs Z had respite at care home 1. The weekly cost was more than the personal budget for respite (£700), so the family paid a top-up. Mrs Z was reluctant to leave care home 1 at the end of her stay so Ms Y asked the Council to assess Mrs Z for a permanent place at care home 1 to see if this was possible and financially affordable.
15. Ms Y called the Council on six occasions between November 2019 and January 2020 to chase up her request for an assessment. In late January 2020, the Council allocated Mrs Z a social worker to carry out the assessment.
16. In February 2020 Ms Y contacted the Council and requested help arranging a respite stay for Mrs Z in March 2020. The social worker telephoned Ms Y. They arranged to meet with Ms Y and Mrs Z. They noted Mrs Z did not speak much English and Ms Y would interpret for her.
17. The social worker noted in the assessment that during Mrs Z’s previous respite stay although her English was limited, she had made friends with other residents and staff. They recorded Ms Y was finding it difficult caring for Mrs Z who could not be left alone. They also noted Ms Y had her own health issues and during the assessment Ms Y looked physically exhausted. They noted Ms Y was struggling to accept her mother’s deteriorating health and tocome to terms with placing her mother in a care home. They concluded that due to a high risk of carer stress and accommodation breaking down they would complete a funding request for a residential placement.
18. Following the assessment, the Council’s brokerage team advertised the request for respite on its system for care providers. It noted Ms Y could not afford the top-up at care home 1 and requested it source alternative homes that Ms Y could visit. The Council identified three care homes, but one bed had gone by the time of Ms Y’s visit, the second had a resident on respite who was looking to extend their stay and the third was willing to assess but would not guarantee the place would still be available by March.
19. In late February/early March, the Council sent Ms Y financial assessment forms to complete and return so it could assess Mrs Z’s contribution to her care costs. The notes record Ms Y wanted to speak to her solicitor and family before the Council started to look for a permanent placement for Mrs Z.
20. In March 2020 care home 2 confirmed it could offer a respite placement and Mrs Z stayed there for respite. Following her return home Mrs Z was unable to attend the day centre due to the COVID-19 pandemic although staff regularly visited her at home.
21. In May 2020 Ms Y returned the financial assessment forms. Shortly after, the Council emailed Ms Y with a financial assessment for Mrs Z's contribution to her respite costs.
22. In June 2020, the social worker contacted the financial assessment team. They noted the team had financially assessed Mrs Z for respite but not for a residential placement as they had requested. They noted the panel had agreed to a care home placement for Mrs Z but it was agreed they would refer Mrs Z for a financial assessment as the family wanted to know the outcome of Mrs Z’s financial assessment before placing her in a care home. They said they had uploaded the financial assessment form for a permanent placement in May 2020 and asked that Mrs Z be assessed for a permanent placement.
23. The financial assessment team sent further finance forms to Ms Y in late June 2020 and requested supporting evidence. The family returned this information to the Council in early July 2020 and the Council calculated, and sent Mrs Y, Mrs Z’s provisional contribution towards the cost of residential care. Following this the Council agreed to Mrs Z’s placement in residential care due to her complex needs and the risk of carer breakdown.
24. In August 2020, the social worker telephoned Ms Y as they understood the need for a placement was urgent. They recorded in the notes that Ms Y wanted to make sure the placement was the right one for her mother so did not mind prolonging the process. Ms Y wanted Mrs Z to live at care home 1. The social worker explained that if she chose care home 1 the family would need to pay a top-up. Ms Y confirmed she had already received the Council’s booklet about charges for staying in a care home. Ms Y advised Mrs Z was unhappy during the respite stay at care home 2 so that was not an option. She had also visited another care home which she was not happy with. The social worker discussed another option with Ms Y, but Ms Y declined it. Ms Y asked the Council to approach care home 1 to see if it would reduce the price.
25. The social worker contacted care home 1 which refused to accept a lower rate. The social worker updated Ms Y. The notes record Ms Y ‘was not willing to look at any other alternative homes and she is continuing to request further financial support from the LA [Council]’.
26. Later that month the social worker spoke to Ms Y again and advised they should move forward with finding a residential placement. Ms Y requested a breakdown of how the Council calculated Mrs Z’s financial contribution and again stated she wanted Mrs Z placed at care home 1. Miss X also spoke to the social worker. She said Mrs Z’s first language was not English and she needed care home staff to speak in her first language. The social worker explained Mrs Z attended day care where staff did not speak her first language. They also said they had offered other placements which Ms Y had declined. They said it was likely Ms Y would decline a care home even if they found one with staff who spoke her first language as Ms Y was focused on care home 1.
27. The social worker told their manager that Ms Y wanted a place at care home 1 but the family would not pay a top-up fee. The family had refused other options. They noted the family wanted a list of care homes with staff who spoke Mrs Z’s first language.
28. Miss X called the social worker in late August 2020 and requested the name of the Councillor who dealt with social care. The social worker’s notes recorded they did not know and advised Miss X to look on the Council’s website. They also advised Miss X that their manager would call her back.
29. The manager telephoned Miss X. They gave her the Councillor’s name. The notes record they discussed care home 1 and the need for a top-up fee. Miss X advised the family could not afford a top-up fee. Miss X said Mrs Z needed a culturally appropriate placement. The manager explained care home 1 was not a culturally appropriate placement. Miss X said they had a worker there who spoke Mrs Z’s first language. The manager explained they could not rely on that one worker remaining at care home 1. The manager said they would ask brokerage to see whether there were other suitable placements. Miss X requested all records related to Mrs Z. The manager asked her to put the request in writing so they were clear as to what was requested. Miss X also discussed the financial contribution. She believed with Mrs Z’s contribution they could afford care home 1. The manager explained the client contributions were included in the costings and a top-up was necessary. They noted ‘the call was cut short and believe that [Miss X] had terminated the call’. They noted Miss X called back and ‘accused me of putting down the phone. [Miss X] was advised this was not the case’. They noted Miss X reiterated what was previously discussed before the call ended again. Miss X then left the manager a voicemail.
30. Miss X complained to the Council about the delay in finding a placement for Mrs Z, that the calculation of the contributions showed Mrs Z could afford care home 1 and about the call with the manager. She said the manager was rude and did not allow her to speak.
31. In early September 2020 brokerage closed the case as it was at a standstill.
32. In late September 2020 Mrs Z had a fall which resulted in a hospital admission. The Council agreed to reassess her on discharge from hospital. On her discharge an Occupational Therapist recommended Mrs Z receive a floor bed and mattress to replace her existing bed. The family also purchased a sensor mat which alerted the family if Mrs Z got out of bed.
33. The social worker reassessed Mrs Z’s needs in late September 2020. They remained of the view that a care home could meet Mrs Z’s needs. At the time they recorded Mrs Z’s dementia had caused her to only speak her first language and would ideally benefit from having a carer who could speak her first language. They noted staff should be flexible with their communication methods to potentially overcome the language barrier and care staff could potentially learn basic phrases. They noted Mrs Z was much happier in a group setting. She slept more at home and became more agitated.
34. The Council responded to Miss X’s complaint in early October 2020. It noted brokerage had identified a care home which Ms Y had declined. It also referred to three other care homes which it had brought to Ms Y’s attention. It said it had contacted care home 1 which would not reduce its rate and that care home 1 had only one member of staff who was not a care worker who spoke Mrs Z’s first language. It set out that if the family wanted Mrs Z to go to care home 1 they had to pay a top-up fee. It considered it had taken reasonable steps to provide the family with a choice of placements. It explained how the financial assessment was calculated and that Mrs Z’s contribution formed part of the overall personal budget.
35. In relation to the telephone call with the manager the Council said it had spoken to the manager. In their view they said they had tried to relay information to Miss X which she did not readily accept. Further points related to a subject access to records request. The manager had advised that a formal request was required in writing to share Mrs Z’s information to ensure they understood what she required. The manager accepted the call ended abruptly but it was their understanding Miss X ended the call and the call disconnected again when Miss X called a second time. It said the telephone system used an internet connection and sometimes due to circumstances beyond its control the connection could be adversely affected. This, along with a change in the phone system software had led to some teething problems. It apologised for this. It said the manager had noted the voicemail Miss X left and had logged the subject access request.
36. Following the reassessment, the Council’s brokerage team requested a residential placement via its care system. It also sought a night sitter in the meantime to provide waking support one night a week to Mrs Z on top of her current care package. The Council officer from the brokerage team spoke to the family who said they did not want care home 2 or two other care homes the Council has suggested. They had identified two potential care homes with staff who spoke Mrs Z’s first language. The officer agreed to research the market for care homes with staff who spoke Mrs Z’s first language and with places available.
37. The officer identified two care providers who could provide night sitting support to Mrs Z with staff who spoke Mrs Z’s first language. They also identified three care homes, including one of those suggested by the family, with vacancies and staff who spoke Mrs Z’s first language.
38. The family spoke to the two care providers and identified which they preferred for the night sits. These started in mid-October 2020.
39. The family also expressed a preference for one of the care homes, care home 3, who assessed Mrs Z and agreed to accept her. The Council confirmed there was no third-party top-up fee required and that Mrs Z’s income would cover her contribution to the residential care costs. The Council would invoice Ms Y for this. Mrs Z would be left with £24 a week for her personal expenses allowance. In late October 2020 Mrs Z moved to care home 3.
40. In mid-November 2020 the Council wrote to the family setting out the financial contribution required. The Council reviewed Mrs Z’s placement in February 2021 and found it was meeting her needs.

Findings

41. Ms Y requested an assessment for residential care for Mrs Z in October 2019. The Council did not allocate a social worker until late January 2020. During this period Ms Y called the Council on six occasions to chase progress. This delay was fault. I would have expected this to have taken around four to six weeks. The three-month delay caused Ms Y avoidable distress and frustration and placed her under increased strain caring for Mrs Z
42. There was a delay between the end of February 2020, when Mrs Z’s assessment was completed, to early August 2020 when the social worker contacted the family to assist with finding a placement for Mrs Z. The notes record the family wanted a financial assessment to be completed before they sought a placement for Mrs Z. The Council provided the family with the necessary forms which were returned in May 2020. However, the Council then only carried out a financial assessment for respite and not for residential care. This was fault. It then required further information before it completed the financial assessment in early July 2020. This added a further month’s delay and caused Ms Y additional frustration and time and trouble.
43. The Council agreed to fund a residential placement in July 2020. However, at that time, the evidence shows Ms Y would only consider care home 1. The Council offered an alternative care home and suggested another one which Ms Y refused. The complaint response refers to three other care homes being discussed but these are not referenced in the Council's records. However, the records show the Council did offer an alternative within budget. It explained if the family was to choose care home 1, they would need to pay a top-up fee. This is in line with the statutory guidance and the Council was not at fault.
44. Miss X argued care home 1 would meet Mrs Z’s cultural needs whereas the offered care homes would not. Although care home 1 had a member of staff who spoke Mrs Z’s language that in itself did not make it culturally appropriate. The Council has a duty to meet Mrs Z’s assessed needs and it sought to do this. As Mrs Z’s dementia progressed it recognised Mrs Z would benefit from carers who spoke her first language. The Council was not at fault.
45. Following Mrs Z’s hospital admission, the Council reassessed Mrs Z’s needs. The assessment noted Mrs Z had reverted to her first language and she would benefit from a carer who spoke the language. The Council’s brokerage team identified potential care homes which did not require a top-up and with staff who spoke the same language as Mrs Z. It also sought night sit staff who could speak the language in the meantime. The Council was not at fault.
46. Miss X says the family had to purchase a sensor mat following Mrs Z’s hospital discharge due to the delay in finding her a care home. After the hospital admission the OT recommended a floor bed which was provided. There is no evidence they assessed Mrs Z required a sensor mat. The purchase of the mat was the family’s choice. Following the hospital discharge the Council reassessed Mrs Z and acted promptly to identify a care home placement. It was not at fault.

The actions of the Council officer

47. Miss X says the manager was rude to her and hung up the phone. The manager denies this. I cannot know exactly what was said in the conversation between Miss X and the manager. The Council records show the manager noted the call ended on two occasions. Miss X believed this was because the officer hung up. The Council, in its complaint response, explained how its telephone system worked and the teething problems related to new software. I cannot establish exactly what took place and therefore will not investigate this issue further.
48. Miss X also complained the Council delayed responding to her information request. I have not investigated this issue. Any complaint about the provision of information under a subject access request is a matter best dealt with by the Information Commissioner’s Office.

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Agreed action

49. Within one month, the Council has agreed to apologise to Ms Y and pay her £200 to acknowledge the distress and frustration caused by the Council’s delay in allocating a social worker to assess Mrs Z’s needs and the delay in completing the financial assessment.
50. Within two months the Council has agreed, to prevent recurrence of the fault, to explain what action it has taken to ensure there is no unnecessary delay in allocating social workers to carry out needs’ assessments.

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Final decision

51. I have completed my investigation. On the evidence considered there was fault leading to injustice for which I have recommended a remedy.

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Investigator's decision on behalf of the Ombudsman